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LIBRARY 

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University  of  California. 


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Xlbc  IHnlversftig  of  Cbfcaoo 

FOUNDED  BY  JOHN  D.  ROCKEFELLER 


A  POLITICAL  AND  CONSTITUTIONAL 
STUDY  OF  THE  CUMBERLAND 
ROAD 


A   DISSERTATION 

SUBM.     .ED     TO     THE     FACULTY    OF     THE     GRADUATE     SCHOOL     OF     ARTS 

AND    LITERATURE     IN    CANDIDACY    FOR     THE    DEGREE    OF 

DOCTOR    OF    PHILOSOPHY 

(department   of    POLITICAL   SCIENCE) 


BY 

JEREMIAH  SIMEON  YOUNG 


or  T\iz   ' 


CHICAGO 

1902 


Cbe  TUnfvergltB  ot  Cbfcaoo 

FOUNDED  BY  JOHN  D.  ROCKEFELLER 


A  POLITICAL  AND  CONSTITUTIONAL 
STUDY  OF  THE  CUMBERLAND 
ROAD 


A   DISSERTATION 

SUBMITTED     TO     THE      FACULTY     OF     THE     GRADUATE     SCHOOL     OF     ARTS 

AND    LITERATURE     IN    CANDIDACY    FOR     THE    DEGREE    OF 

DOCTOR    OF    PHILOSOPHY 

(department  op  political  science) 


BY 

JEREMIAH  SIMEON  YOUNG 


or  THE 

UNIVERSITY 


CHICAGO 

1902 


f'^v^ 


/yo<jL.r/ 


PRINTED  AT  THE   UNIVERSITY  OF  CHICAGO  PRESS,  JULY,  iqo4 


INTRODUCTION. 

The  object  of  the  present  dissertation  is  to  trace  the  origin,  con- 
struction, administration  and  surrender  of  the  Cumberland  Road, 
keeping  in  mind  two  points  of  view,  viz.:  (i)  political  influences;  (2) 
constitutional  bearings  and  significance.  The  genesis  of  the  idea 
back  of  the  Cumberland  Road  is  found  in  the  imperfect  means  of 
communication  in  the  colonies,  the  expansion  of  the  population  west- 
ward of  the  Alleghanies,  the  existence  of  a  public  domain  together  with 
the  admission  of  the  states  carved  from  it,  and  finally  the  necessity  of 
binding  together  the  East  and  the  West  by  means  of  a  great  road.  The 
United  States  was  moved  by  a  political  motive ;  the  states,  mainly  by 
a  commercial  one. 

The  treatment  of  the  subject  is  in  the  main  historical,  although  no 
claim  is  made  to  completeness  from  this  point  of  view.  The  historical 
method  is  used  to  bring  into  view  the  political  and  constitutional  evo- 
lution of  the  subject.  The  historical  side  of  the  subject  has  been 
treated  in  the  Old  Pike  by  Searight,  The  Old  National  Road  by  Hulbert, 
and  The  Cumberland  Road  as  a  Union-Making  Force  by  Sparks.  The 
attempt  in  this  research  is  made  to  treat  the  Cumberland  Road  as  a 
central  thread  running  through  the  subject  of  internal  improvements 
until  1856. 

The  preparation  of  the  thesis  began  in  the  fall  of  1897  in  a  semi- 
nar at  the  University  of  Michigan,  under  the  direction  of  Professor 
Andrew  C.  McLaughlin,  and  has  been  continued  in  graduate  work  at 
the  University  of  Chicago  under  the  direction  of  Professor  Harry  P. 
Judson  and  Dr.  Ernst  Freund. 


I.     EARLY  TRANSPORTATION  DIFFICULTIES. 

I.  Communication  in  the  colonies. — The  first  means  of  communication 
utilized  by  the  early  colonists  were  the  water  channels.  Before  the 
era  of  turnpikes,  canals,  and  railroads  the  population  fringed  the  sea- 
coast  and  followed  the  navigable  rivers  into  the  interior.  The  French 
held  the  St.  Lawrence  and  the  Mississippi ;  the  Spanish  thought 
Florida  to  be  an  island ;  the  Puritan  settlements  were  known  as  the 
Massachusetts  Bay  colonies ;  the  Virginia  and  Maryland  colonies  were 
designated  as  the  settlements  on  the  Chesapeake  Bay;  New  Amsterdam 
was  located  on  two  islands  at  the  mouth  of  the  Hudson ;  New  Jersey 
was  known  as  New  Netherlands  at  first ;  and  the  other  colonies  were 
either  on  the  coast  or  on  important  rivers.' 

These  rivers  of  the  Atlantic  plain  furnished  excellent  thoroughfares 
for  communication.  Their  peculiar  character  greatly  facilitated  this  use. 
Indeed,  it  may  be  said  with  truth  that  all  the  Atlantic  coast  rivers  end 
in  "drowned  valleys;"  that  is,  the  tide  rolls  into  the  James  to  Rich- 
mond ;  the  Delaware  to  Trenton ;  and  the  Hudson  to  Albany.  They 
are  great  arms  of  the  ocean  extending  far  inland.  They  were  the 
nerve-currents  reaching  to  and  from  the  extremities  of  the  colonies. 
They  were  the  media  of  internal  commerce,  and  because  of  their  great 
number  and  excellence  the  era  of  artificial  means  of  communication 
was  postponed  until  demanded  by  force  of  circumstances. 

The  chief  reason  for  the  tardy  demand  for  roads  is  that  there  was 
little  intercolonial  communication.  Each  colony  had  one  or  more 
good  sea  ports;  the  rivers  did  not  form  systems,  for  each  flowed 
directly  to  the  ocean,  and  thus  accommodated  a  narrow  string  of 
isolated  settlements;  racial  and  religious  differences  caused  jealousies; 
there  were  three  distinct  forms  of  colonial  government,  with  little  in 
common ;  the  English  navigation  laws  kept  each  colony  a  somewhat 
isolated  unit  anchored  to  the  mother-country.  These  centrifugal  forces 
held  the  colonies  apart;  besides,  the  settlements,  being  on  rivers,  were 
so  widely  separated  that  a  union  of  effort  at  road- making  was  next  to 
impossible.  As  a  result  of  all  these  conditions,  the  meager  inter- 
colonial trade  allowed  by  the  mother-country  went  down  one  river  to 
the  ocean,  then  along  the  coast,  and  finally  up  a  second  river  to  the 

I  Development  of  Transportation^  p.  8. 

7 


8  THE    CUMBERLAND    ROAD 

destined  inland  point,  thus  traveling  three  sides  of  the  square  instead 
of  one — a  short  road  across  the  land. 

As  settlements  began  to  reach  out  from  the  rivers  inland,  the 
\  necessity  for  roads  gradually  arose;  butneighborhood,  and  not  inter- 
colonial, rjjiads  were  deemed  adequate.  These  short  roads  were  con- 
structed under  authority  of  laws  copied  from  England.^  These  laws, 
as  a  rule,  gave  the  care  of  the  roads^  to  the  local  governmental  units. 
They  provided  for  the  appointment  of  road  overseers,  the  compulsory 
process  of  securing  road  labor,  and  the  right  to  levy  a  tax  on  land- 
owners. Of  course,  these  laws  were  not  completely  uniform  in  the 
different  colonies.  The  court  of  Massachusetts  Bay,  in  1639,  ^^^^^ 
reciting  that  in  some  places  the  roads  were  "  too  straight,"  and  that  in 
other  places  the  travelers  "  had  to  go  too  far  about,"  ordered  that  all 
roads  should  be  laid  out  "so  as  may  be  with  most  ease  and  safety  of 
travelers,"  and  "for  this  end  every  town  should  choose  two  or  three 
men  to  join  with  two  or  three  from  the  next  town,  and  these  should 
have  the  power  to  lay  out  the  highways  in  each  town  where  they  may 
be  most  convenient,  notwithstanding  any  man's  property  or  corne 
ground."  Here  was  slight  co-operation  between  towns,  with  adequate 
legal  authority  to  exercise  the  right  of  eminent  domain.^  In  New 
York,  in  1768,  every  landowner  had  a  road  duty  imposed  upon 
him.  He  was  to  make  a  road  as  far  as  his  land  reached  "  from  neigh- 
bor to  neighbor,"  to  the  end  that  "  neighbors  on  occasion  might  come 
together."  Any  default  in  complying  with  the  law  subjected  the 
offender  to  a  fine  of  twenty-five  guilders.^  A  somewhat  different 
policy  was  pursued  in  Pennsylvania.  In  1692  control  of  roads  was 
given  to  towns.  In  1700  local  roads  were  under  control  of  county 
justices,  while  the  King's  Highway  was  supervised  by  the  governor  and 
his  council.'* 

>-  The  matter  of  road-making  was  left  largely  to  local  communities 
and  private  initiative.  One  road  in  Pennsylvania  took  a  century  for 
completion  on  account  of  strong  local  prejudice.  Rather  than  exercise 
the  right  of  eminent  domain,  the  authorities  yielded  to  the  wishes  of 
landowners  who  did  not  wish  to  lose  even  a  square  foot  of  soil  for  the 
sake  of  good  roads.  The  early  colonist  objected  to  a  tax  that  did  not 
directly  benefit  himself  and  his  immediate  neighborhood.  Theoreti- 
cally and  legally,  there  were  good  provisions  for  roads;  but  social, 
commercial,  military,  and  political  necessity  did  not  compel  any  gen- 
eral   movements    leading  to   co-operation ;   there   was,   moreover,  no 

X  Development  of  Transportation^  p.  22.        2  Ibid.^  p.  23.        3  Ibid.^  p.  22.        4  Ibid. ,  p.  22. 


EARLY    TRANSPORTATION    DIFFICULTIES  Q 

Strong  and  sympathetic  central  authority  to  lay  out  long  roads  and 
provide  the  means  for  their  construction. 

AJthpugh  individualism  was  strong,  the  idea  of  a  community  of 
interests  in  transportation  received  a  slight  impetus  from  the  opening  of 
intercolonial  post-routes  in  the  latter  part  of  the  seventeenth  century.' 
In  1673  ^^^  fi^'st  post-rider  was  put  on  a  route  from  New  York  to  Bos- 
ton. Thomas  Neale  was  appointed  postmaster-general  of  Virginia  in 
1692,  but  his  efforts  failed.  The  cause  he  assigned  for  failure  was  "the 
dispersed  condition  of  the  inhabitants."  In  17 10  Parliament  passed 
an  act  establishing  a  general  post-ofifice  for  all  her  majesty's  dominions 
in  America.  There  was  to  be  a  line  of  posts  from  the  Piscataqua  to 
Philadelphia,  which  was  soon  extended  southward  to  Williamsburg, 
Virginia,  and  then  to  the  Carolinas.  Benjamin  Franklin  was  made 
superintendent  of  the  post-office  for  North  America  in  1754.  He  did 
a  good  work,  but  the  roads  remained  in  a  deplorable  condition.  As 
late  as  1790,  after  the  organization  of  the  Union,  there  were  only 
seventy-five  post-offices  in  the  United  States,  and  the  total  length  of 
post-roads  was  less  than  two  thousand  miles.  These  post-roads  were 
only  paths  or  traces.  They  could  not  be  used  for  vehicles ;  hence  only 
"pack-horse"  industries  could  be  used  for  land  transportation.' 

These  facts  show  that  even  the  transportation  of  the  mails  could 
not  lead  the  colonists  to  any  union  of  effort  in  road-making.  What 
could  arouse  them  to  have  a  view  larger  than  one  simply  local  and 
individualistic  ? 

2.  Early  roads  to  the  West. —  Centrifugal  tendencies  held  the  colonies 
apart  commercially  and  politically ;  union  of  effort  could  only  come 
from  some  cause  that  would  threaten  colonial  safety  or  existence.  This 
danger  was  furnished  by  the  wars  with  France.  The  first  three  inter- 
colonial wars  were  fought  over  questions  originating  in  Europe.  They 
drove  the  colonies  to  a  partial  union  of  effort ;  but  the  brunt  of  the 
military  campaigns  fell  to  the  lot  of  the  northern  colonies.  How  did 
these  wars  affect  the  transportation  question  ?  The  first  three  wars 
were  characterized  by  similar  features,  namely,  naval  battles  and  unsuc- 
cessful attempts  to  invade  Canada  by  way  of  Lake  Champlain.  Thus 
the  water  routes  were  used  almost  exclusively.  But  the  fourth,  or 
French  and  Indian,  war  grew  out  of  local  conditions — the  Indian 
trade  and  territorial  jurisdiction  and  control  of  the  West. 

England's  colonial  policy  in  the  eighteenth  century  was  formulated 
by  the  board  of  trade.     This  policy  called  for  a  home  monopoly  of  the 

^Ibid.y  p.  24.  ^Ibid. 


10  THE    CUMBERLAND    ROAD 

colonial  trade,  especially  with  the  Indians;  but  this  trade  was  con- 
trolled by  the  French  because  of  their  occupation  of  the  St.  Lawrence 
and  lake  territory.  By  the  Treaty  of  Utrecht,  the  French  adnaitted 
that  the  Five  Nations  were  subjects  of  England.  This  gave  the 
English  colonies  the  right  to  trade  west  of  the  Alleghany  Mountains. 
In  1744  the  English  paid  the  Iroquois  ;^4oo  for  lands  between  the 
mountains  and  the  Mississippi ;  which  was  done  regardless  of  French 
claims,  possession,  and  protests.  Four  years  l^ter  the  Ohio  Company  was 
organized  and  granted  large  tracts  of  land  in  the  West.  In  this  way 
England  hoped  to  secure  the  Indian  trade ;  also  to  hold  the  French 
in  check.  Of  course,  this  would  involve  England  and  France  in  war.' 
It  was  out  of  the  questions  of  trade  and  conquest  that  the  necessity  for 
long  wagon  roads  arose.  Even  strong  military  necessity  growing  out 
of  northern  and  western  expansion  did  not  bring  about  a  complete 
union  of  effort  and  a  concentration  on  one  good  road  to  the  West; 
hence  the  word  "roads"  must  be  used.  The  explanation  of  such 
conditions  is  interesting. 

The  persons  who  composed  the  Ohio  Company  were  mostly  Vir- 
ginians, including  Dinwiddle,  the  governor  of  the  colony.  Jealousy 
between  Virginia  and  Pennsylvania  over  the  trade  of  the  West  imme- 
diately manifested  itself.  The  Virginians  hoped  to  take  advantage  of 
the  portages  between  the  Potomac  and  the  headwaters  of  the  Ohio.  In 
this  way  the  Pennsylvanians  would  be  almost  excluded,  because  the 
French  held  the  Alleghany  branch  of  the  Ohio.^  The  Virginians  took 
steps  to  secure  the  southern, or  favored  route  over  the  mountains.^  In 
1753  Thomas  Cresop  was  employed  by  the  Ohio  Company  to  blaze  out 
a  track  to  the  new  country.  Washington  used  and  improved  it  when 
he  crossed  the  mountains  to  warn  the  French  to  leave  the  Ohio  Valley. 
This  route  became  classic  as  the  battleground  for  that  great  consti- 
tutional struggle  over  the  question  of  internal  improvements  during 
the  first  half  of  the  nineteenth  century  ;  but  a  battle  on  a  smaller  scale 
was  waged  between  Virginia  and  Pennsylvania  over  the  roads  to  the 
West  in  1755  and  1758. 

There  was  a  general  feeling  on  the  part  of  the  colonists,  especially 
the  Quakers  of  Pennsylvania,  that  the  French  and  Indian  war  was 
brought  on  in  the  interests  of  the  Ohio  Company.'*  When  Braddock 
took  charge  of  the  English  army  in  1775,  he  found  the  Quakers 
and  others  in  opposition  to  the  war,  in  spite  of  the  fact  that  the 
governor  of  Pennsylvania  had  directed  the  survey  of  a  military  road 

I  WiNSOR,  Mississippi  Basin,  p.  250.  ^  Ibid.  Zibid.  ^Ibid,,  p.  307. 


EARLY    TRANSPORTATION    DIFFICULTIES  II 

over  the  mountains  north  of  Philadelphia  in  the  direction  of  Fort 
Duquesne.  Winsor  holds  that  this  was  an  easier  route  than  the  south- 
ern one  to  the  Monongahela,  and  across  a  partially  settled  country- 
offering  better  supplies.  The  southern  or  Washington  route,  up  the 
Potomac  to  Fort  Cumberland  and  over  the  mountains  to  the  nearest 
settlement  of  the  Ohio  Company  on  the  Monongahela,  was  selected  by 
Braddock  for  the  following  reasons  :  No  favors  were  to  be  shown  Penn- 
sylvania because  of  her  apathy ;  Hanbury,  a  London  merchant  and 
shareholder  in  the  Ohio  Company,  used  his  influence,  for  commercial 
reasons,  in  favor  of  a  good  military  road  by  the  shortest  route  to  the 
company's  western  storehouse;  Governor  Dinwiddle,  an  active  sup- 
porter of  the  war,  was  also  a  member  of  the  Ohio  Company;  Washing- 
ton favored  the  southern  route  because  he  knew  it  well/  The  time 
taken  by  Braddock  to  open  a  military  road  one  hundred  miles  through 
a  new  country,  far  from  his  base  of  supplies,  gave  the  French  an 
opportunity  to  concentrate  their  forces  at  Fort  Duquesne  and  defeat 
the  English  army.  So  much  for  the  effects  of  Virginia  commercialism 
on  the  location  of  the  real  forerunner  of  the  Cumberland  Road. 

The  Pennsylvania  side  of  the  road  question  was  not  dissimilar, 
except  as  to  the  military  result.  The  year  1758  found  Forbes  at  the 
head  of  the  army  for  the  reduction  of  Fort  Duquesne.  His  headquarters 
were  at  Philadelphia,  and  most  of  the  army  was  in  Pennsylvania.  The 
question  of  the  route  by  which  he  was  to  march  immediately  arose.  It 
was  pointed  out  by  the  Pennsylvanians  that  the  route  by  Raytown 
through  Pennsylvania  was  shorter  and  better  than  the  one  by  Fort 
Cumberland  over  which  Braddock  had  marched  to  defeat.  Forbes 
decided  for  the  Pennsylvanians  in  favor  of  the  new  northern  route,  even 
in  the  face  of  stout  opposition  from  the  Virginians.  Washington  was 
emphatically  in  favor  of  the  Braddock  road.''     He  wrote  : 

The  Pennsylvanians  whose  present  as  well  as  future  interest  it  was  to 
have  the  expedition  conducted  through  their  government  [territory]  and  along 
that  way,  because  it  secured  their  frontiers  at  present,  had  prejudiced  the 
General  absolutely  against  the  old  Road  and  made  him  believe  that  we  were 
the  partial  people,  and  determined  him  at  all  events  to  pursue  that  road.  ^ 

Washington's  melancholy  prediction  that,  if  time  were  taken  to  cut 
the  new  road,  Forbes's  expedition  would  meet  the  same  fate  as  befell 
Braddock,  did  not  prove  true.  The  French  were  routed,  and  the  Ohio 
country  was  nominally  in  the  hands  of  the  English. 

*  Winsor,  Mississippi  Basin,^.  359;  also  Narrative  and  Critical  History,  Vol.  V,  pp.  493, 494. 
2  Washington's  Writings  (Sparks's  edition),  Vol.  II,  pp.  300^302.  Zibid.,  p.  308. 


12  THE    CUMBERLAND    ROAD 

The  Ohio  section  of  the  West  would  no  doubt  have  filled  rapidly 
with  Englishmen  from  the  East,  had  it  not  been  for  the  Revolution. 
After  this  war  the  Indians  became  intensely  hostile  toward  the  colo- 
nists of  the  Atlantic  plain ;  besides,  the  British  retained  the  forts  of 
the  Northwest.  These  two  causes — the  hostility  of  the  Indians  and  the 
retention  of  the  posts  —  turned  the  eastern  tide  of  immigration  south- 
ward of  these  two  military  routes  just  described  to  one  long  afterward 

^    known  as  the  Wilderness  Road. 

\  It  was  by  this  route  that  the  people  from  Philadelphia  went  through 
Lancaster  and  York  to  Wadkin's  Ferry  on  the  Potomac ;  thence  through 
Martinsburg  and  Winchester  up  the  Shenandoah  or  Virginia  Valley 
to  Fort  Chissel,  where  they  were  met  by  the  people  from  Richmond. 
These  two  streams  of  immigration  were  met  by  a  third  from  the  Caro- 
linas  at  Cumberland  Gap,  between  Kentucky  and  Tennessee,  where 
they  passed  into  the  beautiful  valley  of  the  West'.  In  177 1  Boone 
explored  Kentucky,  in  spite  of  the  king's  proclamation  to  his  "  loving 
subjects  "  to  the  contrary.  There  had  to  be  an  outlet  for  the  populous 
states  immediately  east  of  Kentucky  and  Tennessee,  because  high 
taxes  and  hard  times  followed  immediately  after  the  close  of  the 
Revolution. 

Before  the  Revolution  Fort  Pitt  and  Fort  Watauga  were  the  only 
English  settlements  west  of  the  mountains.  In  1790  Kentucky  had  a 
population  of  73,000;  two  years  later  it  was  admitted  as  a  state;  and 
Tennessee  followed  in  1796.  Part  of  this  enormous  tide  of  immigra- 
tion went  west  by  the  way  of  the  Forbes  and  Braddock  routes,  but 
most  of  it  went  over  the  Wilderness  Road.' 

In  1772  there  were  some  united  efforts  at  improving  this  road  by 
means  of  private  subscriptions.^  In  1795  the  Virginia  legislature  appro- 
priated ;^2,ooo  for  the  improvement  of  the  eastern  part.  The  same 
year  it  was  made  a  wagon  road  in  its  western  part  by  Kentucky;  and 
two  years  later  $500  was  appropriated  for  repairs  and  the  erection  of 
toll  gates  ;  but  tolls  were  unpopular  in  a  new  country,  and  the  road 
never  became  a  turnpike. 

Military  necessity,  private  initiative,  and  small  appropriations  by 
states  immediatly  concerned  were  not  sufficient  for  the  construction  of 
a  good  road  over  the  mountains  through  a  sparsely  settled  intervening 
country.  As  no  single  state  was  financially  able  or  willing  to  undertake 
such  a  work,  attention  was  turned  to  the  treasury  of  the  United  States; 
but  strict  construction  of  the  Constitution  and  hard  times  acted  as  a 

» Speed,  The  Wilderness  Road,         ^Ibid.y^.  52.  3 The  highest  was  £,2's  lowest,  4s. 


EARLY    TRANSPORTATION    DIFFICULTIES  1 3 

bar.  The  first  solution — only  a  partial  one — was  reached  by  enlist- 
ing the  proprietary  power  of  the  United  States  through  a  use  of  the 
public  domain  for  this  purpose.  As  the  United  States  had  no  public 
domain  south  of  the  Ohio  at  the  beginning  of  the  nineteenth  century, 
the  scene  for  road-building  shifted  from  the  Wilderpess  Road  to  a 
section  where  the  United  States  owned  lands. 


II.  GENESIS  OF  THE  CUMBERLAND  ROAD. 

I.  The  public  domain  and  the  Cumberland  Road  fund. —  Near  the 
close  of  the  Revolution  a  few  of  the  eastern  states  advanced  claims  to 
lands  in  the  West.  These  claims  were  based  principally  on  original 
colonial  charters ;  but  there  were  some  other  grounds.  North  of  the 
Ohio  there  was  a  hopeless  tangle  of  overlapping  state  claims.  Six 
states — Maryland,  Pennsylvania,  Delaware,  New  Jersey,  New  Hamp- 
shire, and  Rhode  Island  —  could  claim  no  lands  in  the  West.  Under 
the  leadership  of  Maryland  they  contended  that  the  territory  had  been 
won  from  the  French  by  common  effort,  and  consequently  should 
belong  to  the  Union  as  a  whole  and  not  to  the  individual  states,* 
This  view  prevailed  and  the  United  States  came  into  possession  of  the 
public  domain. 

The  ordinance  of  1787  formed  a  territorial  government  for  this 
country,  and  provided  for  its  admission  into  the  Union  on  an  equality 
with  the  original  thirteen  states.  The  only  provision  in  this  now 
famous  document  that  pertained  to  the  transportation  question  was  as 
follows  :  "  The  navigable  waters  leading  into  the  Mississippi  and  St. 
Lawrence,  and  the  carrying  places  between  the  same,  shall  be  common 
highways  and  forever  free.'"  This  revealed  an  attitude  of  mind  favor- 
able to  comprehensive  plans  for  transportation ;  but  the  road  between 
the  East  and  the  West  was  left  untouched. 

Large  tracts  of  land  were  immediatly  sold  in  the  Northwest ;  but, 
owing  to  hard  times,  full  payment  was  not  made.  When  Ohio  applied 
for  admission  in  1802,  this  question  of  land  still  unpaid  for  was  a  mat- 
ter of  considerable  importance.  The  ordinance  provided  as  follows  : 
"  The  legislatures  of  those  territories  or  new  states  shall  never  interfere 
with  the  primary  disposal  of  the  soil  of  the  United  States."  It  was 
immediately  feared  that  the  new  state  could  sell  these  unpaid-for  lands 
for  nonpayment  of  taxes ;  but  such  a  sale  would  cause  friction  and 
might  interfere  with  the  "primary  disposal  of  the  soil." 

Treasurer  Gallatin  reported  to  the  committee  that  had  the  matter 
in  charge  the  following  plan  : 

That  one-tenth  part  of  the  net  proceeds  of  the  lands  lying  in  said  state 

I  Herbert  Adams,  Maryland's  Influence  on  Land  Cession  to  United  States  (Johns  Hopkins 
University  Studies,  Third  Series). 

=  Ordinance,  1787,  Art.  IV. 

14 


GENESIS    OF    THE    ROAD 


15 


hereafter  sold  by  Congress,  after  deducting  all  expenses  incident  to  the  same, 
shall  be  applied  to  the  laying  out  and  making  of  roads,  leading  from  the  navi- 
gable waters  emptying  into  the  Atlantic  to  the  Ohio  and  continued  afterwards 
through  the  state ;  such  roads  to  be  laid  out  under  the  authority  of  Congress, 
with  the  consent  of  the  several  states  through  which  the  same  shall  pass. 

As  an  equivalent  the  state  was  to  exempt  all  land  sold  by  Congress 
from  taxes  for  ten  years  from  and  after  the  completion  of  payment  of 
purchase  money  to  the  United  States.'  The  general  plan  was  adopted, 
except  that  5  per  cent,  was  substituted  for  10  per  cent.;  and  five  years 
of  exemption  instead  of  ten.  The  binding  force  of  the  ordinance 
was  recognized,  and  these  propositions  were  submitted  to  the  Consti- 
tutional Convention  of  the  proposed  new  state  of  Ohio.  The  convention 
at  Chillicothe  agreed  to  the  plan,  with  certain  modifications.  The 
change  touching  the  road  question  was  that  no  less  than  3  per  cent,  of 
moneys  arising  from  the  sales  of  lands  in  Ohio  should  be  expended  on 
roads  within  the  state  under  the  direction  of  the  state  legislature.'  This 
change  was  adopted  by  Congress  March  3,  1803.  This  left  a  "2  per 
cent,  fund"  for  the  construction  of  roads  to  and  through  the  state  to  be 
expended  under  the  direction  of  Congress.  The  Cumberland  Road  ] 
fund  originated  in  a  "compact"  between  the  United  States  and  the  \ 
state  of  Ohio.3  It  was  intended  to  settle  two  difficulties:  (i)  to  pro- 
vide a  fund  for  a  road  to  the  West ;  (2)  to  avoid  friction  with  the  state 
of  Ohio  in  regard  to  the  "primary  disposal"  of  federal  lands. 

2.  Commercial  and  political  problem  of  the  East  and  the  West. —  In 
1806  Congress  was  virtually  forced  to  do  something  to  bind  the  East 
and  the  West  together  commercially. 

After  the  Revolution  the  transportation  difficulties  formed  an 
important  social,  commercial,  and  political  barrier  to  the  union  of 
the  states.*  The  topography  of  the  country  emphasized  these  difficul-  .  ^ 
ties.  Th©--?tStes  to  the  east  and  those  to  the  west  of  the  Alleghany 
Mountains,  respectively,  formed  separate  and  distinct  geographical 
unities.^  Physical  barriers  in  the  early  days  were  all-important,  and 
this  wedge  of  mountains  was  a  disintegrating  force.  A  brief  examina- 
tion of  the  transportation  difficulties,  as  they  affected  the  states  com- 
mercially and  politically,  is  appropriate  at  this  point. 

i Annals,  7th  Cong.,  ist  Sess.,  pp.  1078-1103  ;   Writings  of  Gallatin.    Gallatin  indorsed  this 
report  to  the  committee  as  the  "Origin  of  the  National  Road." 
2  U.  S.  Statutes  at  Large,  Vol.  II,  p.  226. 
zibid..  Vol.  II,  p.  226. 

4  John  Fiske,  Critical  Period,^,  (>t.. 

5  J.  W.  Burgess,  Political  Science  and  Constitutional  Law,  Vol.  I,  p.  11. 


1 6  THE    CUMBERLAND    ROAD 

The  Atlantic  plain  transportation  was  reasonably  good,  as  the  rivers 
led  to  and  from  the  seacoast  markets.  The  West  had  a  central  thread 
of  transportation  by  means  of  the  Ohio  to  the  Mississippi,  thence  to  the 
Gulf ;  but  this  \o6ktd.from  and  not  toward  the.  Atlantic  seaboard  markets. 
The  Ohio  occupied  a  large  place  in  the  public  mind  of  the  eighteenth 
century.'  It  played  an  important  political  role  after  the  French  and 
Indian  war.  George  III.  was  opposed  to  an  extension  of  the  eastern 
colonies  westward  f  but  the  English  board  of  trade  wanted  the  trade  of 
the  Ohio  country;  Franklin  wanted  colonies  in  the  West,  and  pointed 
out  to  the  board  of  trade  that  a  road  forty  miles  long  would  connect  the 
Potomac  with  the  headwaters  of  the  Ohio,  and  thus  secure  this  trade.^ 
The  road  was  not  built ;  but,  instead,  in  1774  the  Quebec  Act  was  passed. 
The  tendency  of  this  act  was  to  sever  the  West  from  the  East  and  to 
bring  about  commercial  affiliation  between  the  West  and  the  St.  Law- 
rence system  of  transportation.  If  the  plans  of  Vergennes  had  suc- 
ceeded in  1782  in  the  Treaty  of  Paris,  the  United  States  would  have 
been  cooped  up  east  of  the  mountains.  This  would  have  ended  the 
question  of  binding  the  West  to  the  East.'^  In  spite  of  Vergennes,  the 
diplomacy  of  the  American  commissioners  triumphed,  and  the  West, 
or  a  part  of  it,  was  yoked  with  the  East  by  the  treaty  that  closed  the 
Revolution.^  But  there  must  be  something  more  than  a  treaty  to  bind 
two  widely  different  sections  of  country  together ;  there  must  be  mutual 
interest  and  accommodation;  and  there  was  not  a  universal  recognition 
of  this  principle  in  the  latter  part  of  the  eighteenth  century. 

The  misapprehension  of  the  principle  just  stated  was  manifested 
by  a  neglect  of  the  transportation  question.     The  tremendous  move- 
ment of  people  to  the  West  by  the  routes  already  described  brought 
/the  question  of  eastern  neglect  into  bold  relief.     Transportation  was 
I  the  most  fundamental  question  in  the  early  history  of  the  West.     It 
I  was  neglect  on  the  part  of  Virginia  and  North  Carolina  that  aroused 
the  people  of  Transylvania  and  Franklin  to  assume  such  a  formidable 
)  attitude,  amounting  almost  to  withdrawal  from  the  mother-states  just 
east  of  the  mountains ;  a  question  of  transporting  grain  to  the  Atlantic 
seaboard  that  caused  the  Whiskey  Insurrection  in  western  Pennsylva- 
nia; a  commercial  question  touching  transportation  that  alienated  the 

iAlden,  New  Governments  West  of  the  Alleghanies  before  1780.  All  the  proposed  new 
colonies  and  states  were  on  either  side  of  the  Ohio  River  or  touched  it  at  some  point. 

2  His  proclamation  of  1763  indicated  this.  "^ 

3  Franklin* s  Works,  Vol.  V,  pp.  47,  48.  Franklin  no  doubt  had  an  eye  to  the  political  effects  of 
such  a  road. 

4  B.  A.  Hinsdale,  Old  Northwest,  p.  141.  5  Fiske,  op.  ctt.,  chap.  i. 


GENESIS    OF    THE    ROAD  1 7 

people  of  western  New  York  and  drove  them  to  trade  with  Montreal ; 
it   was  the   effort   to    secure   the   free  navigation    of   the   Mississippi 
that  caused  the  western  ferment  which  led  to  the  purchase  of  Louisiana 
in   1803;  and  all   this  cumulative  evidence  led  the  acute  politician,  i 
Aaron  Burr,  to  think  it  possible  to  organize  an  empire  of  the  West  j 
separate  and  distinct  from  the  East.  ' 

These  conditions  and  possibilities  were  foreseen  by  Washington 
years  before.  In  1754,  when  he  made  his  trip  to  Fort  Duquesne,  the 
importance  of  the  West  impressed  him.'  He  exhibited  his  faith  by 
securing  103,354  acres  of  land  west  of  the  mountains.''  The  necessity 
of  improving  the  navigation  of  the  Potomac  was  dwelt  upon.  In  1774 
he  made  a  report  to  the  Virginia  House  of  Burgesses  on  the  same  sub- 
ject; but  before  anything  could  be  done  he  was  called  to  command 
the  continental  troops,  and  the  matter  was  dropped  until  1784.^ 

At  the  close  of  the  Revolution  Washington  spent  some  time  exam- 
ining the  portages  between  the  eastern  and  western  waters,  traveling 
more  than  650  miles.'^  The  results  of  the  investigations  he  reported 
to  Harrison,  governor  of  Virginia.  He  pointed  out  the  advantage  of 
improving  the  navigation  of  the  Potomac,  and  of  making  a  good  road 
over  the  mountains  from  the  head  of  such  navigation.  He  observed 
that  the  "West  stood  on  a  pivot."  A  false  step,  he  said,  might  turn  it 
either  to  Spain  or  to  England.  He  even  wrote  to  a  member  of  Con- 
gress pointing  out  the  political  significance  of  binding  the  West  to  the 
East  by  means  of  internal  improvements — a  chain  which  could  never  j 
be  broken.5 

The  practical  outcome  of  Washington's  strong  plea  was  that  the 
Potomac  Company  was  incorporated  by  Virginia  and  Maryland  for  the 
purpose  of  opening  a  good  route  to  the  West.  Washington  was  elected 
president  of  the  company.  Its  membership  was  made  up  of  Maryland 
and  Virginia  men.*^  The  company  was  active  for  a  time,  spending 
$700,000  on  the  improvement  of  the  river.^  Soon  after  the  election  of 
Washington  as  President  of  the  United  States,  the  Potomac  company 

I  PiCKELL,  Early  Life  of  Washington^  p.  29;  Washington's  Writings,  Vol.  I ;  House  Reports, 
igth  Cong.,  ist  Sess.,  No.  228,  p.  1. 

2 Adams,  Washington'' s  Interest  in  Western  States  ("Johns  Hopkins  University  Studies," 
Third  Series).  ^  '  ' 

3P1CKELL,  op,  cit.,  p.  29.  A  Ibid.,  p.  39. 

S  Marshall's  Life  of  Washington,  Vol.  V,  p.  14. 

6 It  was  on  the  question  of  this  trade  route  to  the  West  that  Virginia  and  Maryland  united  for  a  con- 
ference at  Alexandria;  this  action  led  to  the  calling  of  the  Annapolis  convention,  which  in  turn  led  to 
the  calling  of  the  federal  convention  at  Philadelphia. 

7  House  Reports,  19th  Cong.,  2d  Sess.,  Vol.  II,  No.  90,  p.  2. 


I 8  THE    CUMBERLAND    ROAD 

almost  ceased  operations.  The  immediate  object  for  which  the  com- 
pany was  organized  was  not  realized ;  but  its  work  pointed  the  best 
way  to  the  West,  and  showed  that  commercial  interest  is  the  strongest 
bond  for  political  union. 

The  economic  situation  will  be  clearer  by  the  use  of  a  few  statistics. 
It  cost  $125  to  move  a  ton  of  merchandise  from  Pittsburg  to  Phila- 
delphia; west  of  the  mountains  salt  cost  ^5  per  bushel,  and  steel  25 
cents  per  pound ;  to  transport  a  bushel  of  wheat  from  the  West  to  New 
York  city,  $1  must  be  paid.  These  charges  were  so  high  as  practically 
to  prohibit  the  movement  of  merchandise  between  the  two  sections.' 

For  overcoming  these  difficulties,  Pennsylvania,  in  1792,  incor- 
porated a  company  to  make  an  artificial  road  from  Philadelphia  west- 
ward to  Lancaster.  Maryland  undertook  to  make  a  road  from  Baltimore 
to  Fort  Cumberland  on  the  Potomac.  These  roads  were  coStructed 
by  private  corporations,  aided  by  subscriptions  on  the  part  of  the  state. 
There  was  much  promise  in  this  plan,  as  it  was  backed  largely  by  capi- 
talists interested  in  the  western  trade;  but  the  capitalists  were  soon 
drawn  off  to  engage  in  shipping,  because  the  European  wars  left  the 
carrying  trade  to  be  monopolized  by  the  shipowners  of  the  United  States. 

The  work  already  done  for  the  improvement  of  transportation  did 
not  stop  the  clamor  from  the  West.  The  roads  thus  far  constructed  did 
not  reach  over  the  mountains.  High  rates  of  toll  were  charged,  which 
were  immensely  unpopular.  What  the  West  demanded  was  a  good 
road  which  should  be  free.  This  was  in  mind  when  the  compact 
between  the  United  States  and  Ohio  was  made.  Congress  was  con- 
stantly besieged  for  aid.  Under  the  guise  of  giving  access  to  its  west- 
ern land.  Congress  had  granted  Ebenezer  Zane,  of  Wheeling,  three 
sections  of  land  to  cut  a  trace  through  what  is  now  Zanesville,  Lan- 
caster, and  Chillicothe  to  Limestone,  Ky.*  In  1792  a  mail  route  was 
established  between  Richmond,  Va.,  and  Danville,  Ky.^  Two  years 
later  a  mail  route  was  established  from  Philadelphia  to  Pittsburg,  and 
finally  to  Louisville,  Ky. 

This  taste  of  congressional  action  only  whetted  the  appetite  of  the 
West.  The  people  of  this  section  became  jealous  of  the  East  on  the 
question  of  improvements.  When  the  Union  was  formed,  all  the  states 
touched  the  Atlantic.  These  Atlantic  states  had  received  the  assent  of 
Congress  to  levy  tonnage  duties  for  the  improvement  of  rivers  and  har- 

I  J.  B.  McMaster,  History  of  the  People  of  the  United  States,  Vol.  Ill,  pp.  463,  464. 
2 Sparks,  Expansion  of  the  American  People,  p.  116. 
3  U.  S.  Statutes  at  Large,  Vol.  I. 


GENESIS    OF    THE    ROAD  1 9 

bors."  Besides  this,  Congress,  under  authority  of  the  commerce  clause, 
had  appropriated  directly  for  the  support  of  lighthouses,  beacons,  and 
buoys.''  These  two  plans  might  have  worked  well,  if  the  new  states 
had  been  on  the  seaboard.  But' they  were  not.  They  complained 
bitterly  that  they  as  consumers  were  compelled  to  pay  indirectly  for 
the  seaboard  improvements ;  but  if  they  wished  internal  improvements, 
they  must  tax  themselves  directly.  They  received  no  help  from  the 
East,  and  wanted  Congress  to  make  an  "advance"  on  the  Ohio  road 
fund,  reimbursable  when  the  money  should  be  collected.  Every  Con- 
gress was  besieged  with  letters  and  petitions  for  a  road.  Various 
attempts  were  made  to  begin  the  work ;  but  they  failed,^  until  finally 
the  demands  of  the  West  were  put  so  forcibly  that  a  Senate  committee 
was  appointed  to  bring  in  a  report  on  the  enabling  act  of  Ohio  and 
the  "2  pW  cent,  fund.""*  This  report  was  accepted,  and  the  "advance" 
made  in  1806.  The  long  struggle  on  the  part  of  the  West  seemed 
crowned  with  success. 

I  Constitution,  Art.  I,  sec.  10, par.  3.  Thirty- four  such  assents  have  been  given:  Lalor,  Vol.  II, 
p.  556. 

a  To  1806  Congress  appropriated  $120,570;  U.  S.  Statutes  at  Large,  Vols.  I,  II. 

^  Annals  of  Congress^  8th  Cong.,  ist  Sess.,  pp.  254,  263,  273,  297,  305,  631,  876,  943,  986, 1012, 
1241, 1242;  8th  Cong.,  2d  Sess.,  pp.  27,  28,  32,  37,  43,  63,  689. 

^Miscellaneous  State  Papers,  Vol.  I,  p.  432. 


III.     LOCATION,  CONSTRUCTION,  AND  ADMINISTRATION 
OF  THE  ROAD. 

I.  Location  of  the  Cumberland  Road. — According  to  the  report  of 
the  Senate  committee,  the  "2  per  cent,  fund"  for  *'the  laying  out  and 
making  roads  from  the  navigable  waters  emptying  unto  the  Atlantic  to 
the  Ohio"  amounted  to  $12,652.  As  the  clamor  was  for  a  trade  route, 
the  distances  from  the  navigable  waters  of  the  West  to  Philadelphia, 
Baltimore,  Washington,  and  Richmond  were  indicated  to  the  Senate. 
Three  eastern  cities  were  striving  for  the  trade  of  the  West.  The  mer- 
cantile intercourse  of  the  citizens  of  Ohio  was  chiefly  with  Philadelphia 
and  Baltimore ;  not  very  extensive  with  towns  on  the  lower  Potomac ; 
and  still  less  with  Richmond,  Va.^  The  state  of  Virginia  was  doing 
little  in  1805  to  make  roads  westward;  but  Pennsylvania  was  making 
great  efforts  to  command  the  trade  of  the  West  by  attempting  to  open 
a  road  from  Philadelphia  to  Pittsburg ;  the  state  of  Maryland,  with  no 
less  spirit  and  perseverance,  was  constructing  a  road  from  Baltimore  in 
the  direction  of  Fort  Cumberland.  As  the  territory  of  Maryland  did 
not  reach  over  the  Alleghanies,  it  was  thought  that  her  interest  would 
not  complete  the  road  so  far  as  to  connect  with  the  Monongahela,  the 
first  navigable  stream  west  of  the  mountains.  With  the  hope  that  the 
Potomac  company  would  finally  clear  the  Potomac  River  of  obstruc- 
tions to  Fort  Cumberland,  the  beginning  of  Braddock's  Road,  the 
committee,  largely  influenced  by  the  constantly  increasing  Ohio  trade 
with  Baltimore,  recommended  the  laying  out  and  making  of  a  road 
from  Cumberland  on  the  Potomac  in  Maryland  to  the  Ohio  at  some 
convenient  point  opposite  Steubenville  and  the  mouth  of  Grave  Creek 
below  Wheeling.  The  distance  from  Cumberland  to  the  Ohio  was 
thought  to  be  136  miles  by  the  usual  route;  by  the  nearest,  no  miles. 
This  route  would  meet  the  roads  leading  from  Baltimore  and  Wash- 
ington, D.  C:  would  cross  the  Monongahela  at  Brownsville,  where 
boating  was  good ;  would  intersect  the  Ohio  where  roads  could  easily 
be  made  passable  through  the  populous  parts  of  the  state  of  Ohio.^* 
The  committee  was  under  the  influence  of  Maryland  and  Virginia.  It 
was  no  doubt  largely  influenced  by  the  writings  of  Washington  con- 
cerning the  route  which  he  had  selected;  also  by  the  work  of  the 
Potomac  company. 

'^Miscellaneous  State  Papers,  Vol.  I,  p.  432.  ^Ibid.,  pp.  432,  433. 

20 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  21 

The  first  direct  legislation  on  the  Cumberland  Road,  aside  from  the 
original  compact  with  Ohio,  bore  the  title,  "An  Act  to  regulate  the  lay- 
ing out  and  making  a  road  from  Cumberland  in  the  State  of  Maryland 
to  the  State  of  Ohio.'"  It  was  approved  March  29,  1806,''  and  author- 
ized the  President,  with  the  advice  and  consent  of  the  Senate,  to  appoint 
three  disinterested  citizens  as  a  board  of  commissioners  to  lay  out  the 
road.  The  President  might  accept  or  reject  their  plans  and  recom- 
mendations. If  he  accepted  the  report,  he  was  authorized  to  pursue 
such  measures  as  he  might  deem  proper  to  secure  the  consent  of  the 
states  through  which  the  road  would  pass,  "and  having  secured  this 
consent  he  was  further  authorized  to  take  such  measures  as  he  might 
think  wise  in  constructing  it."  The  only  points  located  by  the  act 
were  the  beginning  and  the  termination,  or  Cumberland  and  the 
termination  on  the  Ohio.  It  was  to  be  laid  out  in  such  direction  as 
the  commissioners  and  the  President  should  think  most  proper,  "all 
circumstances  considered."^ 

Jefferson,  transmitting  the  first  report  of  the  commissioners  to 
Congress,'*  stated  that  the  consent  of  the  Legislatures  of  Maryland  and 
Virginia  had  been  received ;  but  the  consent  of  Pennsylvania  had  not 
yet  been  granted.^  The  objects  governing  the  commissioners  were : 
(i)  shortness  of  distance  between  the  navigable  points  on  the  eastern 
and  western  waters ;  (2)  the  best  method  of  diffusing  benefits,  with  the 
least  distance  of  road ;  (3)  a  consideration  of  the  comparative  merits  of 
towns  and  settlements  with  present  and  prospective  populations.  The 
report  bore  testimony  to  the  importunities  of  the  inhabitants  of  every 
part  of  the  country  that  thought  its  ground  entitled  to  consideration. 
The  route  recommended  by  the  commissioners  followed  the  general 
course  of  Braddock's  Road.  It  was  proposed  to  open  upon  equal 
terms  all  parts  of  the  western  country.  If  the  recommendations  of 
the  committee  had  been  accepted,  the  route  ^  would  have  been  practically 
direct  from  Cumberland  to  the  Ohio ;  but  the  old  opposition  exhibited 
by  Pennsylvania  again  asserted  itself. 

The  people  of  Pennsylvania,  and  especially  of  Philadelphia,  were 
commercially  jealous  of  the  people  on  the  Potomac  and  the  Chesa- 
peake.    This  jealousy  was  directed   against  Baltimore  in  particular. 

1  U.  S.  Statutes  at  Large,  Vol.  II,  p.  357. 

2  The  sum  of  $30,000  was  appropriated.    This  was  thought  a  considerable  "  advance." 

3  V.  S.  Statutes  at  Large,  loc.  cit. 

4 The  commissioners  were  Thomas  Moore  and  Eli  Williams,  of  Maryland,  and  Joseph  Kerr,  of  Ohio. 

^Miscellaneous  State  Papers,  Vol.  I,  p.  474. 

6This  route  embraced  24.5  miles  in  Maryland,  75.5  miles  in  Pennsylvania,  and  12  miles  in  Virginia. 


22  THE    CUMBERLAND    ROAD 

The  people  of  Pennsylvania  believed  that  the  road  was  being  con- 
structed in  the  direct  interests  of  Baltimore ;  hence  the  consent  of 
Pennsylvania  for  the  road  to  pass  through  her  territory  was  withheld 
until  April  9,  1807.  The  line  recommended  by  the  commissioners  did 
not  suit  the  legislature.  The  first  section  of  the  act  granting  consent 
for  the  road  to  pass  through  the  state  was  as  follows : 

Resolved,  That  the  route  laid  down  and  reported  by  the  commissioners 
to  the  President  of  the  United  States  be  so  altered  as  to  pass  through  Union- 
town  in  the  county  of  Fayette,  and  Washington  in  the  county  of  Washington, 
if  such  alteration  can,  in  the  opinion  of  the  President,  be  made  consistently 
with  the  provisions  of  an  act  of  Congress  passed  March  29,  1806;  but  if  not, 
then  over  any  grounds  within  the  limits  of  the  state  which  he  may  deem  most 
advantageous. '^ 

The  policy  of  attempting  to  dictate  the  points  on  the  road  at  the 
same  time  that  the  consent  of  the  state  was  given  is  a  matter  of  great 
interest.  It  played  an  important  part  in  the  early  history  of  the  Cum- 
berland Road,  and  the  precedent  then  established  had  an  important 
bearing  on  the  later  history  of  this  public  improvement.' 

February  19,  1808,  President  Jefferson  notified  Congress  that  he 
had  approved  the  route  recommended  by  the  commissioners  as  far  as 
Brownsville,  Pa.,  with  the  single  deviation  which  carried  it  through 
Uniontown,  Pa.^     Continuing,  he  said : 

From  thence  the  course  to  the  Ohio  and  the  point  within  the  legal  limits 
at  which  it  shall  strike  that  river  is  still  to  be  decided.  In  forming  this 
decision  I  shall  pay  material  regard  to  the  populous  parts  of  the  state  of  Ohio, 
and  to  a  future  and  convenient  connection  with  the  road  which  is  to  lead  from 
the  Indian  boundary  near  Cincinnati  by  Vincennes  to  the  Mississippi  at  St. 

Louis In  this  way  we  may  accomplish  a  continual  and  advantageous 

line  of  communication  from  the  seat  of  the  General  Government  to  St.  Louis, 
passing  through  several  very  interesting  points  of  the  Western  Country.'^ 

Pennsylvania  had  carried  its  point  on  locating  the  road  through 
Uniontown.  But  the  location  north  of  the  direct  line  through  Wash- 
ington seemed  to  be  defeated.  The  people  of  Washington  threatened 
opposition  by  force.s  The  services  of  Gallatin,  who  had  formerly  lived 
in  Washington  County,  Pa.,  were  enlisted.  Writing  to  Jefferson  under 
date  of  July  27,  1808,  he  said  : 

^Laws  of  Pennsylvania,  1807,  p.  185.  2  See  pp.  25,  28,  45, 

3  Uniontown  was  the  home  of  Gallatin,  Jefferson's  secretary  of  the  treasury.  It  was  not  on  the 
most  direct  route.  Jefferson's  decision  was  undoubtedly  influenced  by  the  interference  of  the  Pennsyl- 
vania legislature. 

A  Miscellaneous  State  Papers,  Vol.  I,  p.  714. 

S  Jefferson's  Works,  Washington's  edition,  Vol.  V,  p.  333. 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  23 

Permit  me,  however,  to  state,  the  county  of  Washington,  with  which  I  am 
well  acquainted,  having  represented  it  six  years  in  Congress,  gives  a  uniform 
majority  of  about  two  thousand  votes  in  our  favor,  and  if  this  be  thrown  by 
reason  of  this  Road  in  a  wrong  scale,  we  will  infallibly  lose  the  state  of  Penn- 
sylvania at  the  next  election I  have  been  reminded  of  this  subject 

by  the   enclosed  letter  from  an  influential  and  steady  Republican  of  that 
county.'' 

Jefferson,  under  date  of  August  6,  1808,  wrote  to  Gallatin.  He 
deplored  having  yielded  to  Pennsylvania  in  the  first  instance,  and 
deprecated  the  unworthy  means  that  were  being  used  by  the  Pennsyl- 
vanians  to  influence  him.  He  doubted  whether  the  commissioners  had 
sufficient  money  remaining  to  make  a  survey  as  far  north  as  Washing- 
ton. He  also  seemed  disturbed  at  what  Wheeling  would  say  if  the 
road  were  taken  from  it  and  given  to  Washington  ;""  but,  writing  to  the 
commissioners  on  location  the  same  day,  he  ordered  a  survey  by  Wash- 
ington. He  observed  that  the  principal  object  should  be  to  run  the 
road  in  a  direct  route;  but  if  deflections  would  benefit  certain  towns 
and  better  accommodate  travelers,  they  should  receive  consideration.^ 
The  commissioners  viewed  this  route,  but  rejected  it  because,  being  so 
far  north,  it  would  lengthen  the  road  and  increase  the  angle  at  the 
Ohio,  if  Wheeling  remained  the  point  of  termination." 

Here  the  matter  was  allowed  to  rest  until  March  3,  1811.     At  this 
time  an  entering  wedge  was  driven  for  changing  the  location  from  the 
direct  to  the  circuitous  route  by  Washington,  Pa.     Congress  passed  an   \ 
act  authorizing  the  President  to  permit  deviations  from  the  courses       \ 
already  run  by  the  commissioners ;  but  no  deviations  were  to  be  made        \ 
from  the  principal  points  already  established  on  the  route.^      Under 
authority  of  this  act,  the  line  was  changed  to  pass  through  Washington,     / 
Pa.,  in  accordance  with  the  joint  resolution  of  the  Pennsylvania  legis-  / 
lature.^      There  was  a  spirited  contest  between  Steubenville,  Ohio,  and/ 
Wheeling,  Va.,  over  the  point  at  which  the  road  should  touch  the  Ohid. 
Wheeling  won  through  the  efforts  of  Henry  Clay.     The  states  of  Ohib 
and  Virginia  in  their  corporate  capacity  did  not  become  involved.    This 
completed  the  location  as  far  as  the  Ohio,  and  fulfilled  the  original 
part  of  the  compact  between  the  United  States  and  Ohio. 

When  the  first  part  of  the  location  was  approved,  Jefferson  thought 
the  road  would  pass  west  of  the  Ohio  through  Chillicothe,  Lebanon, 

I  Gallatin's  Writings,  Adam's  edition,  Vol.  I,  p.  39S. 

^Jefferson'' s  Writings,  loe.cit.  A  Miscellaneous  State  Papers,  Vol.  I,  pp.  940,  941, 

3  Ibid.,  p.  332.  S  U.  S.  Statutes  at  Large,  Vol.  II,  p.  661. 

(>Ibid,,  Vol.  Ill,  p.  560.     See  resolution  of  Pennsylvania,  p.  22. 


24  THE    CUMBERLAND    ROAD 

and  Hamilton  in  Oiiio,  and  connect  with  the  military  road  leading 
through  Vincennes  to  St.  Louis.  The  road  was  to  accommodate  the 
southern  or  populous  parts  of  Ohio ;  but  the  defeat  of  the  British  in 
the  Northwest  and  the  subjugation  of  the  Indians  opened  the  western 
and  northern  sections  of  the  Northwest.  Settlements  sprang  up  in  the 
new  country ;  and  before  any  work  was  done  on  the  road  west  of  the 
Ohio,  Indiana  was  admitted  in  1816,  and  Illinois  in  18 18.  The  United 
States  entered  into  "compact"  with  these  states  similar  to  the  one 
existing  with  Ohio.^ 
f  In  1820  an  appropriation  was  made  for  surveying  and  locating  a 
/  continuation  of  the  Cumberland  Road  from  Wheeling  through  the 
\f  states  of  Ohio,  Indiana,  and  Illinois  to  a  point  on  the  Mississippi 
"between  St.  Louis  and  the  mouth  of  the  Illinois."  The  previous 
political  intrigues  and  state  jealousies  taught  Congress  a  lesson.  The 
law  required  that  the  road  was  to  run  in  as  straight  a  line  as  practicable. 
The  purpose  of  this  act,  as  recited  in  the  preamble,  was  to  increase  the 
value  of  the  public  lands.  The  money  appropriated  was  not  reimburs- 
able from  the  "2  per  cent,  fund."'  In  this  respect  Congress  departed 
temporarily  from  the  previous  policy  and  wheeled  into  line  with  the 
-other  internal-improvement  plans  of  the  day. 

The  report  of  the  commissioners  on  location  stated  that  a  direct 
route  would  pass  south  of  the  capitals  of  Ohio,  Indiana,  and  Illinois.^ 
Shortly  before  this  report  was  received,  Missouri  entered  the  Union. 
The  United  States  entered  into  a  compact  with  this  state  similar  to  the 
ones  existing  with  Ohio,  Indiana,  and  Illinois.-^  In  1825  Congress 
made  an  appropriation  for  completing  the  survey  to  the  capital  of 
Missouri.  The  southern  parts  of  Ohio,  Indiana,  and  Illinois  were 
being  fairly  well  accommodated  by  steamboat  navigation  on  the  Ohio. 
This,  together  with  the  tide  of  immigration  to  the  northern  sections, 
induced  Congress  to  designate  by  law  the  capitals  of  Ohio,  Indiana, 
and  Illinois  as  points  on  the  road.^  This  carried  the  road  north  of  the 
route  originally  projected  by  Jefferson. 

In  1825  the  road  was  located  on  a  direct  line  as  far  west  as  Colum- 
bus; in  1826  a  direct  line  was  run  from  Columbus  to  Indianapolis. 
Only  one  town,  Newark,  east  of  Columbus,  made  an  effort  to  carry  the 
road  from  the  direct  route.  The  effort  was  unavailing.  The  state  of 
Ohio  did  not  interfere,  and  the  direct  route  was  approved.^ 

I  U.  S,  Statutes  at  Large,  Vol.  II,  pp  .  290,  430.  2  Hid  p.  604. 

3  State  Papers,  Vol.  VII,  No.  82,  i6th  Cong.,  2d  Sess.      4  U.  S.  Statutes  at  Large,  Vol.  Ill,  p.  574. 

Slbid.,  Vol.  IV,  p.  128.  6  State  Papers,  Vol.  V,  No.  74,  19th  Cong,,  2d  Sess. 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  2$ 

An  interesting  struggle  was  waged  by  Dayton  and  Eaton,  sup- 
ported by  the  Ohio  legislature,  to  have  the  direct  route  from  Springfield, 
Ohio,  to  Richmond,  Ind.,  changed  to  pass  south  of  the  direct  line 
through  these  two  points.'  The  Pennsylvania  interference  was  to  be 
repeated  in  spite  of  the  action  by  Congress  in  favor  of  a  direct  route. 
In  1830  the  legislature  of  Ohio  passed  a  resolution  which  declared 
that  the  transportation  of  the  mails  would  be  facilitated  and  public 
interest  promoted  by  changing  the  location  of  the  road  to  pass  through 
Dayton  and  Eaton.  A  committee  of  the  House  of  Representatives 
brought  in  a  report  in  accordance  with  this  resolution,  but  no  change 
was  made.'  An  act  was  passed  and  approved  March  3,  1835,  which 
directed  the  secretary  of  war  to  have  the  line  between  Springfield,  Ohio, 
and  Richmond,  Ind.,  reviewed.  After  this  was  done,  the  line  of  the  road  1 
was  to  run  in  such  a  way  as  would  *'best  promote  the  public  convenience 
and  interest."  The  location  so  made,  if  approved  by  the  President, 
was  to  be  established  between  these  two  points.^  Under  authority  of  \ 
this  act,  a  survey  was  made  south  through  Dayton  and  Eaton,  but  / 
President  Jackson  approved  the  direct  route.^ 

The  Dayton  and  Eaton  people,  not  willing  to  accept  this  decision 
as  final,  carried  the  fight  to  Congress  and  made  the  first  direct  attempt 
in  the  history  of  the  road  to  have  the  national  Congress  set  aside  a 
decision  of  the  President.  The  matter  came  before  a  committee  of 
the  House.  Joseph  Crane  appeared  for  the  state  of  Ohio.  He  called 
attention  to  the  act  of  1835  which  required  that  the  line  should  run 
between  Springfield  and  Richmond  in  such  a  way  as  would  "  best  pro- 
mote the  public  interest  and  convenience."  The  direct  line  had  been 
favored  because  it  was  about  four  miles  shorter  than  the  route  through 
Dayton  and  Eaton.  In  his  opinion,  there  were  counterbalancing 
advantages  in  favor  of  the  Dayton-Eaton,  or  southern,  route  : 

The  transportation  of  the  daily  mail  would  be  cheaper,  as  there 
was  a  daily  mail  stage  from  Columbus  through  Springfield  to  Dayton,  I 
thence  on  through  other  towns  to  Cincinnati ;  the  western  part  of  Ohio 
and  the  eastern  part  of  Indiana  received  and  would  continue  to  receive 
their  great  eastern  mail  through  Dayton.  The  upper  route  west  of 
Springfield  did  not  pass  a  single  village  or  post-office,  and  half  the 
way  passed  over  a  flat,  wet,  thinly  inhabited  country.  The  lower  route 
would  pass  through  the  Mad  River  valley ;  here  were  many  mills  and 

I  See  map.  "^Reports  of  Committees,  Vol.  III.  No.  410,  21st  Cong.,  ist  Sess. 

3  U.  S.  Statutes  at  Large,  Vol.  IV,  p.  772. 

A  Executive  Documents,  Vol.  Ill,  No.  62,  24th  Cong.,  ist  Sess. 


26  THE    CUMBERLAND    ROAD 

manufacturing  establishments;  it  would  pass  through  two  towns  — 
Dayton  and  Eaton ;  Dayton  was  a  town  of  five  thousand  inhabitants, 
and  was  important  for  its  internal  improvements ;  the  Mad  River  & 
j  Erie  Railroad  would  soon  reach  it  from  Portland  and  Tiffin,  Ohio,  and 
'  be  extended  to  Cincinnati,  where  it  would  connect  with  a  railroad 
which  was  being  built  from  Charleston,  S.  C,  to  that  point. 

The  southern  route  would  accommodate  the  agricultural,  commer- 
cial, and  manufacturing  population  west  of  Springfield  better  than  the 
direct  route.  He  acknowledged  that  overruling  the  decision  of  the 
President  would  establish  a  precedent,  but  thought  the  public  interest 
and  commerce  would  justify  such  action.^ 

A  letter  was  produced  from  the  Post-Office  Department.  This 
stated  that  there  was  no  necessity  for  a  mail  route  by  the  direct  line. 
The  great  western  mail  and  the  mail  for  the  western  part  of  Kentucky, 
Tennessee,  Alabama,  and  a  part  of  Mississippi  passed  through  Dayton."" 

D.  F.  Heaton,  a  special  delegate  from  Dayton  and  Eaton,  was  next 
heard  by  the  committee.  He  first  recited  the  history  of  the  "compact " 
between  the  United  States  and  Ohio,  and  concluded  that  the  road 
belonged  to  Ohio.  He  thought  her  interests  should  be  consulted  in 
its  location.  "So  thought  Jefferson,  whom  some  supposed  to  have 
been  the  greatest  and  best  man  that  ever  lived."  "But  now,"  contin- 
ued Heaton  "at  this  late  day,  after  the  head  of  the  patriot,  the  sage, 
the  philosopher,  is  laid  low  and  cold  in  the  grave,  are  his  doctrines 
y  and  principles  to  be  rejected  and  trampled  under  foot  ?     No." 

He  next  took  up  the  question  of  public  interest  and  commerce. 
He  called  the  attention  of  the  committee  to  the  fact  that  the  road  had 
been  under  the  supervision  of  the  president  from  the  first.  Jefferson 
had  caused  it  to  pass  through  Uniontown,  Pa.,  because  the  "public 
interest"  required  it.  Uniontown  was  not  larger  than  Eaton  and 
never  could  be  as  large  as  Dayton.  The  road  originated  in  compact ; 
had  been  constructed,  in  whole  or  in  part,  from  a  fund  reserved  for 
the  purpose,  for  which  Ohio  had  given  an  equivalent ;  therefore  the 
state  legislature  and  the  inhabitants  of  the  populous  parts  of  the  state 
should  be  heard  on  a  question  of  location.  He  mentioned  that  the 
legislature  of  Pennsylvania  was  heard  on  the  location  of  the  road 
through  Uniontown  and  Washington,  notwithstanding  the  fact  that 
Pennsylvania  was  only  a  party  to  the  "  compact"  in  common  with  the 
other  states  of  the  Union  ;  she  contributed  nothing  to  the  road ;  and 
the  points  she  designated  took  the  road  a  greater  distance  out  of  a 

'^Reports  of  Committees,  Vol.  Ill,  No.  367,  p.  4,  24th  Cong.,  ist  Sess.  '^Ibid.,  p.  5. 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  2/ 

direct  line  than  the  points  Ohio  proposed.  He  concluded  by  saying 
that  Ohio  had  done  much  in  the  construction  of  the  road,  not  only  in 
her  own  territory,  but  also  in  that  of  Maryland,  Pennsylvania,  and  Vir- 
ginia. Her  prayer  to  be  heard  on  the  question  of  location  within  her 
borders  should  be  granted. 

The  residents  along  the  direct  route  seemed  secure.  They  sent  a 
few  remonstrances,  but  did  not  have  the  support  of  the  state  legisla- 
ture, as  did  Dayton  and  Eaton.  One  memorial,  numerously  signed, 
by  inhabitants  of  Clark  county'  cited  that  Congress  had  refused  to 
make  a  deviation  in  favor  of  Newark,  Ohio,  "even  when  the  citizens  of 
that  place  had  some  show  of  reason  on  their  side."  This,  they  said, 
clearly  indicated  that  the  road  was  projected  and  carried  into  execu- 
tion for  the  benefit  of  the  nation,  and  not  for  the  accommodation  of  a 
few  towns.  They  felt  that  a  departure  from  this  policy  would  not  be 
more  likely  to  take  place  than  a  violation  of  the  most  solemn  treaty. 
They  would  regard  a  change  in  the  location  of  the  road  in  the  light  of 
a  public  calamity.^  Many  private  communications  were  sent  to  the 
committee.  Thinking  the  location  forever  settled,  some  had  made 
investments  along  the  line ;  the  general  government  must  protect  these 
vested  rights,  or  be  liable  for  personal  claims ^  amounting  to  a  very 
large  sum.  Others  would  claim  "heavy  damages,"'*  as  a  change  would 
work  an  "act  of  individual  injustice."  Even  the  assessors  of  the  rival 
counties  of  Clark  and  Preble  were  thrown  into  the  struggle  on  a  state- 
ment of  the  comparative  value  of  lands  touching  the  route. 

The  committee  reported  to  the  house  that,  in  its  opinion,  it  was 
expedient  to  change  the  location  of  the  Cumberland  Road  from  the 
direct  route  to  pass  through  the  towns  of  Dayton  and  Eaton ;5  but 
Congress  sustained  the  President,  and  the  direct  line  remained  the 
established  route  in  Ohio,  in  spite  of  the  efforts  of  Dayton,  Eaton,  and 
the  Ohio  legislature. 

No  material  difficulties  presented  themselves  on  the  question  of 
location  in  Indiana,  as  the  country  was  thinly  settled.  In  1828  the 
route  from  Richmond  to  Indianapolis  and  Terre  Haute  was  adopted.^ 

State  interference  reached  its  climax  in  the  struggle  of  Missouri 
and  Illinois  over  the  location  of  the  road.     By  the  act  of  1825  Con-*^ 

I  Jealousy  between  Springfield  and  Dayton  was  largely  responsible  for  this  fight  in  Congress  on 
location. 

^Executive  Documents,  Vol.  V,  No.  206,  24th  Cong,,  ist  Sess. 
■ilbid.,  p.  5.  Mbid.,  Vol.  IV,  No.  184,  p.  7. 

S Reports  of  Committee,  Vol.  Ill,  No.  367,  p.  i,  24th  Cong.,  ist  Sess. 
^  Senate  Documents  yNo\.  XI,  No.  99,  20th  Cong.,  ist  Sess. 


28  THE  CUMBERLAND  ROAD 

gress  fixed  Vandalia,  then  the  capital  of  Illinois,  as  one  of  the  points 
on  the  road.  In  1830  the  line  was  reported  definitely  located  between 
Terre  Haute  and  Vandalia ;'  but  the  commissioners  on  location  selected 
no  point  for  crossing  the  Mississippi  in  1821.  They  thought  the  lan- 
guage of  the  law  and  the  physical  conditions  of  the  country  would 
probably  designate  some  point  just  above  the  mouth  of  the  Missouri. 
The  matter  was  referred  to  the  proper  authorities,  and  a  law  was  passed 
in  1825  which  designated  the  seats  of  government,  but  left  the  point 
of  crossing  the  Mississippi  undecided."  In  1828  the  commissioners 
made  an  examination  of  the  line  to  St.  Louis ;  thence  to  Jefferson 
City,  in  1829,  and  surveyed  back  to  Vandalia  on  the  north  side  of  the 
Missouri,  crossing  the  Mississippi  at  Portage  de  Sioux.^  They  esti- 
mated the  cost  of  the  northern  route  at  $1 1,200  less  than  the  southern  ; 
but  favored  the  commercial  and  military  city  of  St.  Louis'*  as  the  cross- 
ing point. 

A  struggle  which  lasted  for  eighteen  years  was  waged  between  Mis- 
souri and  Illinois  over  the  point  at  which  the  Cumberland  Road  should 
cross  the  Mississippi ;  Missouri  stood  for  the  St.  Louis  crossing ;  III- 
nois  for  the  Alton.s  The  Illinois  legislature  sent  a  memorial  to  Congress 
praying  for  the  Alton  crossing.  It  was  pointed  out  that  the  act  of  1820 
called  for  a  crossing  "between  St.  Louis  and  the  mouth  of  the  Illinois." 
This  clearly  excluded  St.  Louis.  The  Missouri  legislature  replied  with 
a  counter-memorial.  In  this  it  was  pointed  out  that  the  general  gov- 
ernment had  never  pulled  down  one  town  to  build  up  another  on  its 
ruins ;  if  the  road  should  be  located  by  Alton,  the  great  western  mail 
would  be  compelled  to  leave  the  road  and  plunge  into  the  deep  and 
often  impassable  route  leading  to  St.  Louis;  this  would  leave  the 
national  highway  for  the  accommodation  of  a  mail  which  in  all  proba- 
bility could  always  be  carried  on  the  back  of  a  horse.'' 

In  1834  the  legislature  of  Illinois  returned  to  the  attack  with  the 
following  resolution : 

Resolved,  That  the  consent  of  the  State  of  Illinois  is  hereby  given  to 
the  Federal  Government  to  extend  the  National  Road  through  the  territory  of 
said  state  so  as  to  cross  the  Mississippi  river  at  the  town  of  Alton  in  said  state 
and  at  no  other  point. 

Mr.  Reynolds,  one  of  the  Illinois  representatives  of  the  House, 
defended  the  resolution.     In  the  course  of  his  remarks  he  said  that 

1  ^zfa!!^  Pa/^rj,  Vol.  Ill,  No.  59,  2ist  Cong.,  ist  Sess.  "^Ibid.  3  Ibid.  Mbid, 

S  This  was  largely  a  commercial  struggle  between  St.  Louis  and  Alton. 
^Senate  Docutnents,  Vol.  II,  No.  70,  21st  Cong.,  2d  Sess. 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  29 

Illinois  was  acting  on  the  principle  of  state  rights.  No  gentleman,  he  ^ 
said,  would  vote  for  such  an  improvement  as  the  National  Road  con- 
trary to  the  express  will  of  the  state  in  which  it  was  located.  He 
thought  the  United  States,  owing  to  its  constitutional  authority  over 
war,  had  power  to  make  military  roads,  but  no  one  pretended  the 
National  Road  was  a  military  road.  Congress  undoubtedly  had  the 
power  to  establish  post-roads,  but  that  did  not  include  the  power  to 
make  such  a  road  as  this  one.  The  National  Road  was  no  more  a  post- 
route  than  a  military  road,  and  Congress  had  no  right  to  force  it  on  a 
state.  If  Congress  had  the  power  to  make  the  road  without  the  consent 
of  the  states  through  which  it  passed,  it  had  the  power  to  exercise 
jurisdiction  over  it — to  establish  courts  and  provide  officers  to  enforce 
the  acts  of  Congress.  This  would  mean  a  consolidated  government. 
The  general  government,  according  to  Reynolds,  acted  under  authority 
of  the  state  governments.  It  was  one  of  the  delegated  powers  and, 
like  any  other  agent,  could  not  transcend  the  powers  given.  Continu- 
ing, Mr.  Reynolds  said  that  the  act  of  1806  provided  for  securing  the 
consent  of  the  states  through  which  the  road  passed.  Jefferson  required 
the  "full  consent"  of  the  states.  This  consent  was  given  by  Mary-  '^■^' 
land,  Pennsylvania,  Virginia,  Ohio,  and  Indiana.  Congress  had  no 
power  to  act  without  the  consent  of  the  states ;  therefore  the  road  must  v^ 
be  located  at  Alton  and  at  no  other  point.  He  further  remarked  that 
the  people  of  Illinois  did  not  wish  to  injure  St.  Louis,  but  simply 
wished  to  advance  Alton  and  the  interests  of  their  own  state.  He 
adverted  to  the  fact  that  at  a  recent  election  a  vote  was  taken  on  the 
location  of  a  permanent  seat  of  government  for  Illinois.  Alton  had 
received  more  votes  than  any  other  town,  and  would  certainly  become 
the  capital  of  the  state.  The  past  policy  of  the  general  government  had 
been  to  locate  the  road  through  the  capitals  of  the  states ;  the  same 
policy  should  be  pursued  with  reference  to  Illinois.^ 

The  citizens  of  St.  Louis  sent  a  memorial  praying  for  the  road.° 
Surveys  were  again  made  both  north  and  south  of  the  Missouri.^  The 
Illinois  legislature  memoralized  Congress  to  locate  the  road  by  Alton, 
and  reiterated  its  right  to  give  or  withhold  its  consent  for  the  con- 
struction of  the  road.'^ 

On  April  30,  1844,  the  Committee  on  Roads  and  Canals  in  the  ^ 
United  States  Senate  reported  a  bill  to  extend  the  National  Road^  from 

I  Senate  Documents^  Vol.  II,  pp.  1133,  1134. 
2 Ibid.,  Vol.  Ill,  No.  196,  24th  Cong.,  ist  Sess.  3  Ibid. 

\  Executive  Documents,  Vol.  IV.,  No.  127,  28th  Cong.,  ist  Sess.  In  the  West  the  Cumberland 
Road  was  known  as  the/'  National  Road." 

S  Senate  Documents,  Vol.  II,  No.  41,  28th  Cong.,  2d  Sess. 


30  THE    CUMBERLAND    ROAD 

Vandalia  to  Alton.  Attention  was  called  to  the  provisions  of  the  act 
J  of  1806  which  required  the  consent  of  the  states  through  which  the 
road  would  pass.  The  acts  of  the  various  states  that  had  given  consent 
were  examined.  The  committee  concluded  that  the  United  States 
could  not  exercise  the  right  of  eminent  domain  nor  any  jurisdiction 
over  such  a  road  within  a  state.  The  resolution  of  the  Illinois  legisla- 
ture was  quoted  with  approval.  Again  in  1845  the  committee  reported 
in  favor  of  the  Alton  route,  but  the  bill  failed.'  On  January  16,  1847, 
the  controversy  between  Illinois  and  Missouri  made  its  last  appearance 
in  Congress.  At  this  time  the  Senate  Committee  on  Roads  and  Canals 
introduced  a  bill  to  locate  the  National  Road  from  Vandalia  to  Alton. 
The  bill  carried  no  appropriation;  it  simply  provided  for  settling  the 
vexed  question  of  location.  The  committee  made  its  reports  of  1844 
and  of  1845  the  basis  of  this  one.  A  letter  from  Senator  Semple  of 
Illinois  accompanied  the  report. 
J  Senator  Semple  first  showed  that  the  consent  of  the  state  was 
necessary  before  a  final  location  could  be  made  by  Congress.  He 
observed  that  unless  the  road  were  located  to  Alton,  or  the  state  of  Illi- 
nois should  abandon  an  undoubted  right  of  witholding  her  consent, 
the  road  would  never  be  completed  to  the  Mississippi.  He  declared 
that  the  resolution  passed  by  the  Illinois  legislature  in  1834  was  still 
in  force,  and  would  never  be  rescinded.  Congress  could  not  compel 
the  state  to  yield  by  refusing  to  locate  and  construct  the  road  west  of 
Vandalia.  He  went  into  an  extended  history  of  the  western  country  to 
show  why  St.  Louis  was  larger  than  Alton ;  and  charged  Congress  with 
spending  millions  for  St.  Louis  and  as  constantly  refusing  to  spend 
anything  on  Alton.  There  was  no  enmity  between  the  two  states, 
although  one  was  slave  and  the  other  free;  he  only  wished  to  see  jus- 
tice done.  The  question  was  never  decided  by  Congress,  and  the  road 
^    was  not  located  west  of  Vandalia,  111.' 

2.  Construction  and  Administration. —  The  President  of  the  United 
States  had  general  charge  of  the  construction  and  administration  of 
the  Cumberland  Road  from  first  to  last — 1806  to  1856.  He  had 
authority  to  appoint  a  board  of  commissioners  on  location ;  to  accept, 
reject,  or  modify  their  recommendations,  being  restricted  only  to  the 
points  on  the  road  already  located  by  law ;  to  adopt  such  measures  as  he 
might  deem  wise  in  securing  the  consent  of  the  states  through  which 
the  road  would  pass ;  to  use  his  judgment  as  to  actual  construction  and 

I  Senate  Documents^  Vol.  II,  No.  41,  28th  Cong.,  2d  Sess. 
^Ibid.,  No.  70,  29th  Cong,,  ad  Sess. 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  3 1 

administrative  machinery,  with  unimportant  exceptions;  and  finally  to 
supervise  the  withdrawal  and  disbursement  of  money.'  Under  authority 
of  later  enactments,  the  President  was  authorized  to  appoint  super- 
intendents who  were  to  have  the  direct  or  field  supervision  of  construc- 
tion. The  President  gave  his  attention  only  to  the  most  important 
matters,  intrusting  most  of  the  general  supervisory  work  to  the  secre- 
tary of  the  treasury  until  1828,  when  the  secretary  of  war  superseded 
him  for  direction  of  construction,  and  in  1831  for  the  disbursement  of 
money.^  In  1834  the  field  superintendence  was  placed  in  the  hands 
of  the  Topographical  Bureau  of  the  War  Department.^  This  plan  of 
using  soldiers  and  military  experts  seems  to  have  originated  with  Sec- 
retary of  War  J.  C.  Calhoun  in  18 iq."*  The  practice  was  actually 
commenced  in  1824. 

According  to  the  first  act  of  Congress,  the  road  was  to  be  cleared  ^ 
of  timber  to  the  width  of  four  rods;  raised  in  the  middle  with  stone, 
earth,  or  gravel,  leaving  a  ditch  on  either  side;  when  finished,  there 
was  to  be  no  angle  greater  than  five  degrees  to  the  horizon.  The 
manner  of  making  the  road  in  every  other  particular  was  left  to  the 
discretion  of  the  President.^ 

Touching  the  general  importance  of  the  road,  and  the  physical  dif- 
ficulties to  be  overcome  in  constructing  such  an  improvement,  the 
Senate  committee  said  in  1806  : 

Politicians  have  generally  agreed  that  rivers  unite  the  interests  and  pro- 
mote the  friendship  of  those  who  inhabit  their  banks ;  while  mountains,  on  the 
contrary,  tend  to  disunion  and  estrangement  of  those  who  are  separated  by 
their  intervention.  In  the  present  case,  to  make  the  crooked  ways  straight, 
and  the  rough  ways  smooth  will  in  effect  remove  the  intervening  mountains, 
and  by  facilitating  the  intercourse  of  our  Western  brethren  with  those  of  the 
Atlantic,  substantially  unite  them  in  interest,  which  the  committee  believe  is 
the  most  effective  cement  of  Union  applicable  to  the  human  race.^  \/ 

I  U,  S,  Statutes  at  Large,  Vol.  II,  p.  357. 

^Ibid.,  Vol.  Ill,  p.  728;  also  Vol.  IV,  pp.  128,  351,  469. 

3/<5/rf.,Vol.  IV,  p.  680. 

A  Miscellaneous  State  Papers,  Vol,  II,  p.  533, 

5  U.  S.  Statutes  at  Large,  Vol.  II,  p.  358, 

f> Miscellaneous  State  Papers,  Vol.  I,  p.  432. 

The  physical  difficulties  were  also  set  out  in  detail  by  the  commissioners  on  location.  They  reported 
the  couutry  very  rough  and  broken  by  a  succession  of  high  mountains  and  deep  hollows.  The  mountains, 
they  said,  must  be  crossed  obliquely  in  order  to  reduce  the  road  to  an  elevation  of  five  degrees  to  the  hori  - 
zon.  This  would  necessitate  a  resort  to  extensive  hill-digging.  The  elevation  of  the  main  points  as  far  as 
Brownsville,  Pa.,  were  reported  as  follows:  Wills  Mountain,  581  feet;  Savage  Mountain,  2,022 ;  Pine 
Run,  first  western  water,  1,699;  Little  Meadow  Mountain,  2,026;  Big  Youghiogana  River,  645;  Laurel 
Hill,  1,550;  courthouse  in  Uniontown,  Pa.,  274;  a  point  ten  feet  above  low-water  mark  in  the  Mononga- 
hela  River,  119.    The  estimate  for  construction  was  $6,000  per  mile. 


32  THE  CUMBERLAND  ROAD 

In  1808  the  road  was  cleared  one-half  of  its  width  from  Cumberland, 
Md.,  to  Brownsville,  Pa.;  but  the  first  contract  for  construction  was  not 
let  until  May  8,  181 1."  In  1813  ten  miles  of  the  road  were  finished 
and  eleven  were  under  contract.  In  18 14  the  contract  for  the  third 
letting  was  made.  In  181 6  the  necessary  work  was  finished  to  the  Big 
Youghiogona  River.^*  The  total  appropriations  to  1823  were  $1,718,- 
846.35.  The  expenditures  amounted  to  $1,645,679.20,  distributed  as 
follows:  surveying  and  locating,  $29,144.25;  construction,  $1,544,- 
882.70;  repairs,  $16,160.19;  salaries  to  superintendents  and  assistants, 
$53,034.61 ;  miscellaneous,  $2,457.45.^  In  1827  the  road  was  reported 
to  have  cost  $11,226.55  per  mile  from  Cumberland  to  Brownsville — 74 
miles;  and  $15,705.90  per  mile  from  Brownsville  to  Wheeling  —  56 
miles.*  The  part  of  the  road  east  of  the  Ohio  was  open  for  traffic  to 
Wheeling  in  1818;  in  1835  the  last  appropriation  was  made  for  repairs; 
and  July  4,  1838,  the  eastern  part  was  entirely  completed.^ 

The  question  of  repairing  the  road  and  the  levying  of  tolls  by  the 
United  States  gave  rise  to  many  debates  on  the  constitutionality  of  the 
internal-improvement  system.  This  phase  of  the  subject  is  discussed 
in  another  connection.  Before  the  first  ten  miles  were  finished,  the 
superintendent  of  the  road  recommended  a  system  of  tolls  to  provide 
a  fund  for  repairs,  but  thought  this  could  only  be  done  under  authority 
of  the  state  of  Maryland.^  In  181 5  Secretary  of  the  Treasury  Dallas 
reported  the  necessity  of  some  system  of  repairs,  and  that  Maryland 
had  been  urged  to  consent  to  them  and  would  probably  yield.^  A 
House  committee  on  March  23,  18 16,  reported  that  Congress  had  the 
necessary  power  to  preserve  the  road.^  In  1822  this  culminated  in  an 
act  for  the  preservation  and  repair  of  the  Cumberland  Road,  which 
met  with  a  veto  from  President  Monroe.'  In  1823,  as  a  result  of  the 
veto,  a  direct  appropriation  was  made  for  repairs.  This  plan  was  fol- 
lowed for  twelve  years,  when  the  road  east  of  the  Ohio  was  surrendered 
to  the  states  through  which  it  passed.  By  authority  of  the  law,  a  sup- 
erintendent of  repairs  was  appointed. 
■^  In  1825,  after  an  intense  struggle  in  Congress,  an  appropriation 
was  made  for  construction  west  of  the  Ohio.  On  July  4,  1825,  a  great 
celebration  in  honor  of  the  breaking  of  the  first  ground  was  held  at  St. 
Clairsville,  Ohio.      Prayer  was  offered,  the  Declaration    of    Indepen- 

"^  Miscellaneous  State  Papers,  Vol.  11,  p.  175. 

^Ibid.,  p.  182.  3lbid.,Vo\.  V,  No.  77,  17th  Cong.,  2d  Sess. 

A  Senate  Documents,  Vol.  II,  No.  14,  19th  Cong.,  2d  Sess. 

Slbid.,  Vol.  I,  No.  I,  p.  171,  26th  Cong.,  ist  Sess. 

d Miscellaneous  State  Papers,  Vol  II,  p.  175.  l Ibid.,  p.  272.  ^Ibid.,  p.  300. 

9  Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  14a. 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  33 

dence  read,  and  an  oration  delivered.  In  this  oration  it  was  pointed 
out  that  the  road  was  destined  to  reach  the  Rocky  Mountains.  The 
celebration  ended  with  a  brilliant  banquet,  honored  by  the  presence 
of  the  President  and  Vice-President  of  the  United  States.' 

The  appropriation  in  1825  provided  only  for  construction  as  far  as 
Zanesville  and  for  a  survey  to  Jefferson  City,  Mo.  Every  subsequent 
year  to  and  including  1838  Ohio  received  appropriations — the  smallest 
$100,000,  the  largest  $200,000,  the  total  being  $2,081,008.36.  The 
road  from  St.  Clairsville  to  Zanesville  followed  the  old  Zane's  Trace 
authorized  as  far  back  as  1796.  The  average  cost  of  the  road  per  mile 
in  Ohio  was  $3,400.  West  of  Zanesville  the  road  went  through  a 
frontier  country.  The  land  either  had  belonged  to  or  at  that  time 
belonged  to  the  United  States.  '  In  1833  the  road  was  completed  to 
Columbus,  but  was  never  completed  by  the  United  States  west  of 
Springfield.'  Appropriations  for  the  road  in  Indiana  began  in  1829 
and  closed  in  1838.  The  total  sum  appropriated  was  $1,135,000.  The 
road  was  grubbed,  graded,  and  bridged ;  but  only  a  few  miles  finished 
at  Richmond,  Indianapolis,  Centerville,  and  Terre  Haute.  The  plan 
of  the  federal  government  had  been  to  make  the  road  continuous; 
but  the  western  states  complained  that,  at  the  slow  rate  of  construc- 
tion, they  were  enjoying  no  immediate  benefits.  In  deference  to  the 
wishes  of  Indiana  and  Illinois,  the  continuity  of  the  road  was  broken, 
and  Indianapolis  became  the  center  of  activity  —  the  road  being  built 
eastward  and  westward  from  that  point. 

In  1830  construction  began  in  Illinois.  Appropriations  were  made  -^ 
every  year  from  1830  to  1838  —  in  all  $746,000.  The  road  was  located 
only  to  Vandalia.  Railroads  were  being  built  in  the  West ;  constitu- 
tional objections  stood  in  the  way ;  the  road  was  surrendered  to  states 
east  of  the  Ohio  in  1835;  and  Illinois  and  Missouri  were  quarreling 
over  the  question  of  the  best  place  for  the  road  to  cross  the  Mississippi ; 
hence  federal  aid  was  withdrawn,  and  the  road  finally  surrendered  to 
Illinois  in  1856.^ 

Appropriations  for  the  Cumberland  Road  were  usually  made  under  ^^ 
the  fiction  of  "advances"  from  the  federal  treasury,  reimbursable  from 
the  "  2  per  cent,  fund,"  and  were  special  in  most  cases.     In   181 3  and 
1 81 6  they  were  included  in  the  general  appropriation  bill.     In  181 9 
the  '*  2  per  cent,  fund"  arising  from  "compacts"  concerning  land  sales 

-^Niles  Register,  Vol.  XXVIII,  July  23, 1825. 

2  This  was  due  to  the  fight  on  location.  See  p.  25.  A  private  turnpike  was  built  from  Springfield  to 
Richmond  via  Dayton  and  Eaton. 

3  For  discussion  of  surrender  see  pp.  78-104. 


34  THE    CUMBERLAND    ROAD 

of  Ohio,  Indiana,  and  Illinois  was  pledged,  but  not  without  objection 
from  the  last  two  states.  In  1820  the  appropriation  for  a  survey  was 
to  be  paid  out  of  the  treasury,  and  was  not  reimbursable  from  the  road 
fund  proper.  As  a  rule,  the  appropriations  for  repairs  were  out  of  any 
money  "not  otherwise  appropriated,"  and  not  reimbursable.  Appro- 
priations for  construction  west  of  the  Ohio  were  "advances"  reimburs- 
able from  the  "2  per  cent,  fund"  of  lands  sold  in  Ohio,  Indiana, 
Illinois,  and  Missouri,  although  the  road  never  reached  the  latter  state. 
Sometimes  these  appropriations  were  called  special,  sometimes  general, 
or  military,  and  once  (1830)  "internal  improvements;"  but  there  was 
,  an  effort  made  to  keep  this  road  distinct  from  the  so-called  "American 
\  system."  Once  the  appropriation  was  designated  "  repair  of  roads,"  and 
'the  last  one  (1844)  was  in  the  "civil  and  diplomatic"  appropriations. 
This  was  six  years  after  the  last  regular  appropriations  were  made,  and 
was  for  an  arrearage  on  the  survey  to  Jefferson  City.  The  above  state- 
ment shows  considerable  fertility  of  resource  on  the  part  of  the  sup- 
porters of  the  road.  Some  words  are  prominent :  "  advances," 
"compacts,"  "2  per  cent  fund,"  and  "reimbursable." 

As  soon  as  the  Cumberland  Road  was  surrendered  to  the  states, 
arrangements  were  made  for  keeping  it  in  repair  either  by  tolls,  as  in 
Ohio,  Virginia,  Pennsylvania,  and  Maryland,  or  by  state  aid,  as  in  Indi- 
ana and  Illinois. 

In  Maryland  the  road  was  managed  by  persons  appointed  by  the 
governor  of  the  state.  There  was  much  political  corruption  connected 
with  the  administration  of  these  appointees,  until  the  road  was  turned 
over  to  the  counties.     It  is  now  (1902)  free  of  toll.' 

On  April  11,  1831,  Pennyslvania  authorized  the  erection  of  six  toll- 
gates  to  raise  a  fund  to  keep  the  road  in  repair.  In  1847  two  commis- 
sioners were  appointed  by  the  governor  of  the  state,  one  to  act  east  of 
the  Monongahela  and  the  other  west.^  This  law  is  still  in  force.  Pri- 
vate letters  to  the  writer  indicate  that  the  road  is  in  bad  condition  in 
many  places,  as  the  tolls  are  not  sufficient  to  keep  it  in  repair.  The 
state  grants  no  money ;  it  only  exercises  a  general  supervisory  control. 
West  Virginia  has  two  toll  gates  for  its  twelve  miles  of  the  road. 

The  United  States  never  appropriated  for  repairs  in  Ohio,  as  the 
road  was  practically  surrendered  to  the  state  in  183 1.^  In  1836  it 
passed  under  the  control  of  the  state  board  of  public  works.  Special 
commissioners  had  a  general  oversight  in  auditing  tolls  and  settling 

iScARFE,  History  of  Maryland,  Vol.  II,  p.  1331. 

2  Laws  of  Pennsylvania  (pamphlet),  pp.  419,  477.  3  See  p.  79. 


LOCATION,    CONSTRUCTION,    AND    ADMINISTRATION  35 

accounts.  Two  patrolling  engineers  reported  quarterly  concerning  the 
condition  of  the  road/  The  dividing  line  at  one  time  between  the  east- 
ern and  western  divisions  was  at  the  eighty-seventh  mile  post  west  of 
Wheeling.''  Later  the  road  was  parceled  out  into  as  many  divisions 
as  there  were  counties  through  which  it  passed.  In  1850  Ohio  leased 
parts  of  the  road  to  private  companies;  and  four  years  later  the  part 
completed  from  the  Ohio  River  to  Springfield  was  leased  for  ten 
years  for  ^6,105  a  year.^  These  lessees  were  relieved  of  a  bad  contract 
by  the  state  in  iSsg."*  In  1870  the  state  legislature  designated  the 
proper  width  of  the  road  as  eighty  feet ;  but  where  it  passed  through  a 
city  it  was  to  be  the  width  of  the  street ;  and  cities  might  own  the  road 
so  long  as  they  kept  it  in  repair.^  In  1876  county  commissioners  were 
authorized  to  take  under  their  control  so  much  of  the  road  as  lay  within 
their  respective  counties.  The  unfinished  part  from  Springfield  to  the 
Indiana  state  line  was  finished  by  the  counties.^  In  1877  a  law  author- 
ized counties  having  a  sufficient  population  to  make  the  road  free  by  a 
majority  vote,  provided  the  consent  of  Congress  had  been  obtained.' 
The  road  is  now  free  in  all  the  Ohio  counties  except  Franklin.  It  is 
supported  by  county  taxes,  expended  under  the  direction  of  the  county 
commissioners. 

The  road  was  completed  in  Wayne  county,  Ind.  in  1827,  and  turned 
over  to  different  corporations  for  operation  in  1849.  ^  state  law 
reserved  to  Congress  the  ownership  and  control  of  the  road  by  Congres- 
sional reimbursement  to  the  company  for  expenditures  f  but  Congress 
made  a  complete  surrender  of  all  its  interests.'  The  road  since  1893 
has  been  a  part  of  the  free  gravel  road  system,  having  been  purchased 
from  the  private  companies  by  the  townships  through  which  it  passes. 
It  is  kept  in  repair  by  local  taxation  and  road  work.'° 

In  Illinois  the  road  was  never  located  west  of  Vandalia,  only  thirty 
of  the  ninety  miles  from  the  state  line  to  Vandalia  being  entirely  com- 
pleted. The  bridge  over  the  Kaskaskia  was  the  last  work  done  in  Illinois. 
The  road  is  now  owned  and  supported  by  the  townships  through  which 
it  runs.     Tolls  were  never  charged. 

A  brief  summary  at  this  point  may  be  useful :  (i)  The  water  courses 
were   used    as  means  of  communication  by  the  early  colonists.      (2) 

I  Laws  of  Ohio,  Vol.  XXXIV,  p.  41.  6  Ibid.,  Vol.  LXXIII,  p.  105. 

■^Ibid.,  Vol.  XLIII,  p.  89.  1  Ibid.,  Vol.  LXXIV,  p.  62. 

sHuLBERT,  The  National  Road,  p.  456.  8  Searight,  Old  Pike,  p.  304. 

^Ibid.  9Seep.  97. 

5  Laws  of  Ohio,  Vol.  LII,  p.  126.  10  Old  Pike,  p.  309. 


36  THE    CUMBERLAND    ROAD 

These  were  gradually  supplemented  by  post-routes  and  by  military 
routes  opened  to  the  West.  (3)  The  settlement  of  the  West  called  for  a 
better  system  of  land  transportation,  which  was  partially  furnished  by 
the  Wilderness  Road  and  additional,  although  imperfect,  post-traces.  (4) 
The  commercial  and  political  difficulties  of  the  East  and  the  West  have 
been  detailed,  with  a  glance  at  the  attitude  of  Washington  and  Jefferson 
toward  the  early  system  of  internal  improvements.  (5)  As  pointed  out, 
early  road-making  was  left  largely  to  private  initiative,  which  sometimes 
found  expression  in  the  formation  of  private  state  corporations,  with 
power  to  exercise  the  right  of  eminent  domain  and  to  charge  tolls.  (6) 
Again,  a  few  states,  as  Pennsylvania  and  Virginia,  undertook  roads  to 
the  West,  to  enhance  the  value  of  their  respective  lands,  and  for  increas- 
ing the  commercial  supremacy  of  certain  cities.  (7)  All  these  efforts 
proving  ineffectual,  a  resort  was  made  to  "compacts"  between  the 
United  States  and  the  individual  states  most  interested,  which  furnished 
a  "  2  per  cent,  fund,"  derived  from  sales  of  public  lands  anticipated  in 
every  case  by  "advances  "  for  a  road.  (8)  The  political  forces  brought 
into  action  on  the  question  of  location  have  been  discussed.  (9)  And, 
finally,  a  brief  statement  on  construction  and  the  administration  of  the 
Cumberland  Road  closed  the  treatment  of  this  part  of  the  study. 

The  more  strictly  constitutional  phases  of  the  subject  will  be  devel- 
oped in  the  succeeding  pages. 


IV.     PRELIMINARY  CONSTITUTIONAL  CONSIDERATIONS. 

I.  The  Constitution  and  the  "  Compactsy  —  The  prominent  place  occu- 
pied by  internal  improvements  at  the  close  of  the  eighteenth  century 
and  the  beginning  of  the  nineteenth  century  has  been  pointed  out.  An 
important  question  is  :  What  was  the  attitude  of  the  constitutional 
fathers  and  of  the  Constitution  itself  toward  the  subject  ? 

Before  the  adoption  of  the  Constitution  the  states  were  commercially 
and  politically  somewhat  independent.  Narrow  state-rights  views  at 
first  held  the  states  apart  because  of  bickerings  and  petty  jealousies; 
but  these  difficulties  finally  brought  the  states  together  in  the  formation 
of  "a  more  perfect  union."  The  states  at  various  times  were  asked  to 
grant  to  the  Confederate  Congress  commercial  powers,  if  only  for  a 
limited  time.  This  was  not  done;  but  the  agitation  led  to  a  conference 
between  the  states  of  Maryland  and  Virginia  over  a  commercial  or  trans- 
portation question,  which,  in  turn,  led  to  the  calling  of  the  Annapolis 
Convention  —  the  immediate  forerunner  of  the  Philadelphia  Convention 
and  the  federal  Constitution.  It  is  thus  seen  that  commercial  union  is 
the  fruitful  idea  which  resulted  in  political  union. 

The  material  for  a  discussion  of  the  internal-improvement  question 
in  the  Constitutional  Convention  is  scanty,  yet  important.  When 
dealing  with  the  powers  of  Congress  (Art.  I,  sec.  8),  Franklin  moved, 
seconded  by  Wilson,  to  add,  after  the  words  "post-roads,"  a  power  "to 
provide  for  cutting  canals  where  deemed  necessary."  Sherman  objected, 
on  the  ground  that  the  expense  would  fall  on  the  United  States  and  the 
benefit  accrue  to  the  place  where  the  canals  would  be  cut.  Wilson 
replied  that,  instead  of  being  an  expense,  they  might  prove  a  source  of 
revenue ;  that  it  would  prevent  a  state  from  obstructing  the  general 
welfare,  and  would  provide  a  means  of  reaching  the  western  settlements. 
Madison  and  Randolph  were  in  favor  of  some  power  that  would  secure 
easy  communication  between  the  states,  since  free  trade  had  been 
guaranteed  to  them.  The  vote  on  Franklin's  motion  was  3  to  8,  the 
states  voting  in  the  affirmative  being  Pennsylvania,  Virginia,  and 
Georgia.' 

The  same  general  question  appeared  in  a  slightly  different  form. 
After  theconventionhad  decided  to  grant  to  Congress  the  power  to  regu- 
late commerce,  a  proposition  was  made  that  no  state  should  be  restrained 

»  Madison's  Journal  of  the  Federal  Convention,  pp.  725,  726. 

37 


38  THE    CUMBERLAND    ROAD 

from  levying  duties  of  tonnage  for  purposes  of  clearing  harbors  and 
erecting  light  houses.'  It  was  suggested  that  this  was  too  strict  a 
limitation  as  to  the  purpose  for  which  such  revenue  might  be  used. 
As  a  result,  the  clause  was  changed  to  read :  "  No  state  shall  without 
the  consent  of  Congress  lay  any  duty  of  tonnage."'  Now,  it  must  be 
remembered  that  the  convention  had  already  decided  that  a  state  might, 
without  the  consent  of  Congress,  lay  imposts  or  duties  on  exports  for  a 
sum  no  greater  than  was  "absolutely  necessary"  for  executing  its 
inspection  laws.^  These  differences  in  policy  show:  (i)  that  the  states 
might,  without  the  consent  of  Congress,  levy  duties  for  inspection 
purposes ;  (2)  that  they  might,  with  the  consent  of  Congress,  levy  ton- 
nage duties.  In  the  draft,  as  originally  proposed,  there  was  a  rigid 
constitutional  restriction  as  to  the  purpose  of  such  a  levy  for  tonnage 
duties,  while  in  the  final  draft  for  the  Constitution  there  is  no  restric- 
tion as  to  purposes,  only  one  requiring  congressional  assent.  The 
inference  is  clear  that  the  Constitution  intended  that  the  states  should 
raise  an  internal-improvement  fund  by  means  of  tonnage  duties  levied 
with  the  consent  of  Congress.  This  view  is  confirmed  by  the  fact  that 
the  political  branches  of  the  federal  government  for  many  years  were 
in  the  hands  of  persons  who  participated  in  the  work  of  the  federal 
convention.  This  policy  of  the  state  tonnage  duties  with  congressional 
consent  was  commenced  by  Maryland  in  1790,  and  was  not  abolished 
by  that  state  until  1850.  Other  states  did  likewise;  Congress  gave  its 
consent  to  such  state  acts  thirty-four  different  times.'*  It  was  not  until 
1823  that  the  first  river  and  harbor  bill  was  passed  by  Congress.^ 

It  is  claimed  by  some  that  because  internal  improvements  occupied 
so  large  a  place  in  the  public  mind  the  Constitution  surely  granted  this 
power  to  the  federal  government.  No.  14  of  the  Federalist  is  some- 
times quoted  to  justify  such  a  claim.     In  this  number  Madison  said : 

Let  it  be  remembered  ....  that  the  intercourse  throughout  the  Union 
will  be  daily  facilitated  by  new  improvements.  Roads  will  be  everywhere 
shortened  and  kept  in  better  order.  The  communications  between  the 
western  and  the  Atlantic  districts  and  the  different  parts  of  each  will  be  ren- 
dered more  easy  by  those  numerous  canals  with  which  the  beneficence  of 
nature  ha§  intersected  our  country,  and  which  art  finds  it  so  little  difficult  to 
connect  and  complete. 

It  must  be  kept  in  mind  that  Madison  was  replying  to  the  objection 
that  this  country  was  too  large  for  a  federal  republic.     He  was  arguing 

1  Elliot's  Debates^  Vol.  I,  p.  313. 

2  Art.  I,  sec.  10,  par.  3.  4  Lalor,  Cyclopedia  of  Political  Science^  Vol.  II,  p.  569, 

3  Art.  I,  sec.  10,  par.  2.  S  Ibid. 


PRELIMINARY    CONSTITUTIONAL    CONSIDERATIONS  39 

the  invalidity  of  the  objection.  Nowhere  did  he  say  that  these  improve- 
ments should  be  undertaken  by  the  federal  government.  This  would  *^ 
have  been  fatal  to  the  plea  he  was  making,  namely,  ratification  of  the 
Constitution ;  and  the  greatest  objection  to  the  Constitution  was  the 
delegation  of  too  large  powers  to  the  federal  government.  Further,  there  ^ — 
is  nothing  in  the  quotation  or  context  to  show  that  Madison  meant 
more  than  that  these  improvements  would  be  made  by  private  individ- 
uals, companies,  or  states  themselves.  Finally,  it  must  be  remembered 
that  Madison  favored  such  a  power  in  the  Constitutional  Convention, 
but  was  defeated ;  also,  that  his  understanding  of  the  Constitution 
would  not  allow  him  when  president  to  sign  the  "Bonus  Bill"  which 
provided  a  federal  fund  for  internal  improvements.  '"^ 

It  is  clear  that  the  attitude  of  the  Constitution,  as  understood  by 
those  who  framed  it,  was  opposed  to  a  federal  fund  for  internal 
improvements.  Such  a  fund  was  to  be  raised  in  the  states  by  means  of 
tonnage  duties.  This  was  a  shortsighted  policy,  as  it  had  for  its 
fundamental  assumption  that  the  states  all  had  seacoasts ;  but  the  Con- 
stitution no  sooner  went  into  effect  than  Vermont,  Kentucky,  and 
Tennessee  were  admitted  to  the  Union,  and  a  territorial  form  of  govern- 
ment was  formulated  for  the  Northwest,  providing  for  admission  at  no 
distant  day.  These  states  and  this  territory  were  strictly  inland ;  hence 
they  could  not  provide  an  internal-improvement  fund  from  tonnage 
duties.  The  inland  states  claimed  that  they  were  helping  to  pay 
tonnage  duties  by  way  of  additional  price  on  consumption  to  provide  an 
internal-improvement  fund  for  the  eastern  or  seaboard  states.  Herein 
is  found  the  internal-improvement  text  of  congressmen  from  the  inland  '** 
states. 

It  must  not  be  understood  that  the  federal  government  made  no 
direct  appropriations  for  improvements.  The  complaint  was  that  the 
improvements  were  restricted  to  the  coast  for  lighthouses,  beacons, 
bouys,  public  piers,  etc.  They  wholly  neglected  interstate  commerce. 
Again,  as  a  prerequisite  for  these  appropriations  the  states  were  required 
to  cede  the  sites.    This  cession  carried  with  it  jurisdiction  over  the  sites. 

When  Jefferson  came  to  the  presidential  chair,  the  general  clamor 
for  improvements  not  wholly  restricted  to  the  seaboard  was  at  its  height. 
The  West  was  making  its  wants  known.  But  the  close-construction 
theory  of  the  Constitution  would  not  allow  federal  appropriations  for 
an  internal-improvement  system,  unless  the  Constitution  were  amended. 
Jefferson,  in  his  second  inaugural,  after  congratulating  the  people  on 
the  fact  that  the  national  debt  would  soon  be  paid,  said : 


40  THE    CUMBERLAND    ROAD 

The  revenue  thereby  liberated  may,  by  a  just  repartition  among  the  states 
and  a  corresponding  amendment  to  the  Constitution,  be  applied,  in  time  of 

peace,  to  rivers,  canals,  and  roads In  time  of  war,  it  may  meet  expenses 

within  the  year,  without  encroaching  on  the  rights  of  future  generations.^ 

But  representatives  from  the  new  states  and  the  friends  of  internal 
improvements  were  not  strong  enough  to  pass  such  an  amendment.  The 
New  England  states  (1796)  even  opposed  an  appropriation  for  inspect- 
ing a  post-road  from  Maine  to  Georgia.' 

The  opposition  of  New  England  and  the  inability  to  secure  an 
amendment  to  the  Constitution  led  to  the  fiction  of  *'  compacts,"  pledg- 
ing part  of  the  public  domain  in  return  for  exemption  from  state  tax- 
ation. The  "  compact "  was  in  the  nature  of  a  quid  pro  quo  on  the 
admission  of  new  states :  the  new  states  admitted  were  to  secure  a 
road  ;  the  United  States  was  to  have  its  lands  exempted  from  state  taxa- 
tion for  five  years. 

2.  Eminent  Domain. — The  act  of  Congress  in  1806  fixed  only  two 
points  on  the  Cumberland  Road — Cumberland  on  the  Potomac  and 
Wheeling  on  the  Ohio.  This  immediatly  presented  the  question  of  the 
constitutional  authority  of  the  United  States  to  lay  out  and  construct 
a  road  through  the  territory  of  Maryland,  Pennsylvania,  and  Virginia. 
In  other  words,  had  the  United  States  the  authority  to  exercise  the  right 
of  eminent  domain  within  the  territory  of  a  state  ?  The  treatment  of 
eminent  domain  in  connection  with  the  early  internal  improvements 
is  an  interesting  subject,  as  eminent  domain  is  one  of  the  great  powers 
of  sovereignty.  The  right  of  the  United  States  to  exercise  this  power 
was  denied  by  the  states  as  an  infringement  on  their  sovereignty  ; 
therefore  the  practice  in  most  cases  was  for  the  United  States  to  exer- 
cise the  right  with  the  consent  of  the  states,  and  by  means  of  state 
methods  and  officers. 

In  T803  the  legislature  of  Maryland  authorized  Congress  to  improve 
post-roads  within  the  state,  under  the  following  limitation  : 

Provided  also  that  nothing  herein  contained  shall  extend  to  authorize 
Congress  to  cut  down  or  use  the  timber  or  other  material  of  any  person  or 
persons  against  his,  her,  or  their  consent.^ 

Since  this  was  the  prevailing  view,  the  act  of  1806  providing  for  the 
Cumberland  Road  empowered  the  President,  after  accepting  the  report 
of  the  commissioners  on  location,  "to  pursue  such  measures  as  he  deems 
proper  in  obtaining  the  consent  of  the  states  through  which  the  road 

f-  Richardson  (editor).  Messages  and  Papers  of  the  Presidents,  Vol.  I,  p.  379. 
2H1LDRKTH,  Vol.  IV,  p.  629,  %  Laws  of  Maryland,   1802-4,  chap.  115. 


PRELIMINARY    CONSTITUTIONAL    CONSIDERATIONS  4 1 

may  pass  ;  and,  having  obtained  their  consent,  he  is  further  authorized  to 
take  measures  in  having  the  road  promptly  made  through  the  whole  dis- 
tance." Jefferson  promptly  secured  consent  from  Maryland  and  Virgin- 
ia. Pennsylvania  wished  to  dictate  the  location  of  the  road  through  cer- 
tain points,  and  did  not  give  her  consent  until  late  in  1807.  On  January 
31,  1807,  Jefferson,  transmitting  the  report  of  the  commissioners  on 
location  to  Congress,  observed  that  the  Pennsylvania  legislature  still 
had  the  matter  under  consideration.     He  also  added : 

Until  I  rtceXve  full  consent  to  a  free  choice  of  route  through  the  whole 
distance,  I  have  thought  it  safest  neither  to  accept  nor  reject  finally  the  par- 
tial report  of  the  commissioners.^ 

This  ^^ full  consent ^^^  with  the  suggestion  as  to  location,  was  received  by 
the  President  soon  after.''  A  quotation  is  here  given  from  the  act  of 
the  Pennsylvania  legislature,  to  show  how  the  United  States  in  the  con- 
struction of  the  road  was  to  exercise  the  right  of  eminent  domain. 
After  granting  consent  for  the  location  of  the  road  through  Pennsyl- 
vania, the  act  added : 

Such  person  or  persons  as  are  or  shall  be  appointed  for  the  purpose  of 
laying  out  and  completing  the  said  road,  under  authority  of  the  United 
States,  shall  have  full  power  and  authority  to  enter  the  lands  through  which 
the  same  may  pass,  or  upon  any  land  near  by  or  adjacent  thereto,  and  there- 
from to  take,  dig,  cut,  and  carry  away  such  materials  of  gravel,  stone,  earth, 
timber,  and  sand  as  may  be  necessary  for  the  purpose  of  completing,  and  for 
keeping  in  repair,  said  road :  Provided,  that  such  materials  shall  be  valued 
and  appraised  in  the  same  manner  as  materials  taken  for  similar  purposes, 
under  authority  of  this  commonwealth,  are  by  the  laws  thereof,  directed  to  be 
valued  and  appraised,  and  a  certificate  of  the  amount  thereof,  by  the  person 
or  persons  appointed,  or  hereafter  to  be  appointed,  under  the  authority  of  the 
United  States  for  the  purpose  aforesaid,  be  delivered  to  each  party  entitled 
thereto,  for  any  materials  to  be  taken  by  virtue  of  this  act,  to  entitle  him,  her, 
or  them  to  receive  payment  therefor  from  the  United  States.^ 

The  acts  of  Virginia  and  Maryland  were  of  the  same  character. 

There  was  a  tendency  to  break  away  from  this  conception  of  emi- 
nent domain  because  of  the  nationalizing  tendencies  which  followed 
the  War  of  18 12.  Clay  in  181 8,  discussing  the  subject,  said  that  the 
federal  government  had  the  constitutional  power  to  construct  roads  in 
the  states  without  the  consent  of  the  states ;  to  exercise  the  right  of 
eminent  domain; 

I  Miscellaneous  State  Papers,  Vol.  i,  p.  474. 

»  See  p.  22.  3  Laws  0/ Pennsylvania,  1806-7,  chap.  113,  p.  185. 


42  THE    CUMBERLAND    ROAD 

to  fell  the  oak  of  the  mountain,  to  gather  the  stone  which  has  slept  for  centuries 
useless  in  its  bosom,  with  the  qualification  which  the  constitution  has  provided 
in  one  of  its  amendments,  that  when  the  [federal]  Government  takes  private 
property  it  is  bound  to  make  compensation  therefor/ 

Mr.  Cushman,  of  New  York,  said  that  the  states  and  United  States  had 
a  concurrent  jurisdiction,  which  entitled  each  to  make  roads,  and  even 
to  seize  private  property  for  such  purposes,  but  not  without  paying  an 
equivalent.  He  claimed  that  only  an  emergency  would  justify  such  an 
act,  and  the  necessity  would  be  determined  by  the  government  itself. 
He  stated  that  the  fifth  amendment  expressly  recognized  and  qualified  the 
right  of  Congress  to  exercise  the  right  of  eminent  domain  when  neces- 
sary, in  providing  as  follows :  "  Private  property  shall  not  be  taken  for 
public  use  without  just  compensation."^  Mr.  Austin,  of  Virginia,  said 
that  this  amendment  meant  to  apply  to  those  cases  in  time  of  war  when  the 
property  of  an  individual  had  been  destroyed  for  public  purposes  or 
taken  temporarily  for  public  use.^  Mr.  Lowndes,  of  South  Carolina, 
replying  said  that  the  general  government  could  take  private  property 
for  public  purposes  by  making  just  compensation ;  that  this  power  was 
not  restricted  to  the  taking  of  personal  property.  He  said  it  was 
admitted  that  the  states  could  make  roads  and  canals  and  exercise  the 
right  of  eminent  domain  as  an  incident  of  soverignty;  that,  by  parity 
of  reasoning,  the  United  States  could  do  the  same,  as  it  also  was  sover- 
eign.^ As  a  result  of  this  debate,  the  committee  of  the  whole  in  the 
House  recommended  resolutions  affirming  that  the  United  States  had 
power  to  exercise  the  right  of  eminent  domain  ;  but  the  recommenda- 
tion was  not  adopted.^ 

This  ineffective  attempt  to  break  away  from  the  idea  of  state 
sovereignty  in  exercising  the  right  of  eminent  domain  was  not  repeated 
in  connection  with  the  Cumberland  Road,  although  there  is  a  slight 
analogy  in  the  "gate  bill  of  1822."     Monroe,  vetoing  this  bill,  said: 

Whatever  the  United  States  have  done  has,  on  the  contrary,  been  founded 
on  the  opposite  principle,  on  the  voluntary  and  unqualified  admission  that 
the  sovereignty  belonged  to  the  state  and  not  to  the  United  States,  and  that 
they  [the  United  States]  could  perform  no  act  which  should  tend  to  weaken 
the  power  of  the  state  or  to  assume  any  to  themselves.*^ 

This  same  opinion  touching  the  power  of  the  United  States  to 
exercise  the  right  of  eminent  domain  prevailed  in  1833,  when  Mary- 

1  Annals  of  Congress ^  15th  Cong.,  ist  Sess.,  Vol.  I,  p.  1,169, 

2  Ibid.,  p.  1193.  zibid.,  p.  1169.  4  Ibid.,  p.  1243.  5  See  p.  62. 
(>  Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  170. 


PRELIMINARY    CONSTITUTIONAL    CONSIDERATIONS  43 

land,  in  giving  authority  to  Congress  to  make  a  slight  change  in  the 
Cumberland  Road  at  Will's  Creek,  provided  : 

The  President  of  the  United  States,  or  such  person  or  persons  as  may  be 
appointed  by  him,  shall  have  power  and  authority  to  purchase  and  contract 
for  all  materials  necessary  in  repairing  any  part  of  said  National  Road  within 
the  limits  of  this  state,  and  the  same  to  condemn,  if  refused,  by  the  course  of 
proceedings  provided  for  in  the  second  section  of  this  act.^ 

The  section  referred  to  provided  in  an  elaborate  way  for  a  jury  of 
Maryland  citizens  who  should  sit  in  judgment  on  the  value  of  the 
materials  expropriated.  The  reports  of  the  commissioners  on  location 
bear  testimony  to  the  fact  that  all  communities  that  had  any  prospect  of 
securing  the  road  were  anxious  for  its  location.  Owners  of  land  and 
materials  were,  as  a  rule,  eager  to  do  everything  in  their  power  to 
assist  in  the  construction  of  this  improvement.  Only  one  man  in  the 
history  of  the  construction  of  this  road  east  of  the  Ohio  refused  to 
co-operate  with  the  government  in  the  appointment  of  appraisers.  He 
petitioned  Congress  three  times  for  relief.  Each  time  the  committee 
reported  adversely.  He  finally  carried  the  matter  to  his  own  state, 
Virginia;  but  his  petition  for  relief  was  denied.' 

When  the  road  was  finished  to  the  Ohio  River,  it  reached  states  in 
which  the  United  States  owned  land — the  states  carved  from  the 
public  domain.  Accordingly,  the  act  which  authorized  the  extension 
of  the  road  westward  from  the  Ohio  River  reserved  from  sale  so  much 
of  the  public  lands  as  was  included  in  the  right  of  way.^  In  this  way 
the  question  of  eminent  domain  did  not  become  a  troublesome  one  in 
these  states  until  Illinois  asserted  her  state-rights  doctrine  on  location 
in  1834. 

Some  practices  of  the  United  States  government,  beginning  with 
1806,  may  seem  to  be  at  variance  with  the  policy  pursued  with  refer- 
ence to  the  Cumberland  Road.  The  same  Congress  that  authorized 
the  construction  of  the  Cumberland  Road,  with  the  consent  of  the 
states  through  which  it  passed,  also  authorized  the  President,  without 
the  consent  of  the  states  immediately  concerned,  to  lay  out  roads  from 
(i)  the  frontiers  of  Georgia  to  New  Orleans;  (2)  the  Mississippi  to  the 
Ohio  and  the  former  Indian  boundary  line  established  by  the  Treaty  of 
Greenville;  (3)  Nashville,  Tenn.,  to  Natchez,  Miss.'*  But  there  are 
some  facts  which  throw  light  on  this  seeming  exception  to  the  general 

^Laws  of  Maryland,  1831-32,  chap.  55.  3  U.  S.  Statutes  at  Large,  Vol.  Ill,  p.  604. 

2  Chambers,  The  Old  National  Road,  p.  106.  A  Ibid.,  Vol.  II,  p.  397. 


44  THE    CUMBERLAND    ROAD 

policy  outlined  above.     On  February  9,   1815,  a   Committee  on  the 
Repair  of  Roads  brought  in  a  report  which  said  : 

It  appears  by  a  treaty  concluded  with  the  Chickasaws  of  the  24th  of 
October,  1801,  and  another  with  the  Chocktaws  on  the  17th  of  December  in 
the  same  year,  that  the  consent^  of  these  Indians  was  obtained  to  the  opening 
of  a  wagon  road  through  their  respective  lands,  and  by  an  act  of  Congress  of 
the  2ist  of  April,  1806,  that  the  sum  of  $6,000  was  appropriated  to  this 
purpose,  which  was  effected  as  was  provided  by  these  treaties  and  this  act 
under  the  direction  of  the  President  of  the  United  States.  It  appears  also 
by  a  treaty '  with  the  Creek  Indians  concluded  on  the  14th  of  November, 
1805,  that  the  United  States  have  a  right  to  a  horse  path  through  their  lands, 
and  by  the  act  above  mentioned,  that  $6,000  were  appropriated  for  the 
purpose  of  opening  a  road  from  the  frontier  of  Georgia  on  the  route  from 
Athens  to  New  Orleans  as  far  as  the  thirty-first  degree  of  north  latitude.^ 

It  is  seen  from  the  above  that  these  roads  were  laid  out  with  the 
consent  of  the  Indians — a  consent  given  by  solemn  treaty.  This 
illustrates  the  policy  of  the  United  States  in  considering  the  Indian 
tribes  as  in  some  senses  foreign  nations,  in  spite  of  the  fact  that  they 
resided  within  the  territorial  limits  of  some  of  the  states."*  These  roads 
were  on  the  frontier,  and  the  question  of  expropriating  land  from 
private  owners  could  hardly  become  a  serious  one. 

But  the  United  States  did  enter  the  territory  of  the  states  without 
their  consent,  and  either  repair  or  construct  both  postal  and  military 
roads.  This  was  done  in  i8i2,s  in  1816,^  in  1823,^  in  1826,^  and  in 
1829.''  However,  a  careful  examination  of  the  acts  authorizing  these 
repairs  and  constructions  shows  that  the  United  States  was  not  author- 
ized to  exercise  the  right  of  eminent  domain.  The  routes  were 
military,  and  were  on  the  frontier  where  it  was  necessary  to  take  very 
little  private  property.  Besides,  private  owners  gladly  co-operated 
with  the  United  States  government  in  all  such  works,  as  they  were 
anxious  for  the  protection  and  benefits.  On  the  other  hand,  the  routes 
passed  in  many  cases  through  territory  in  which  the  United  States 
owned  the  lands,  and  no  one  denied  the  right  of  the  United  States  to 
construct  roads  through  lands   in  a  territory.'"      Such  powers   as   the 

I  U.  S.  statutes  at  Large,  Vol.  VII  ("  Indian  Treaties"),  p.  66. 

3  Ibid,,  p.  96.  3 Reports  of  Committees,  13th  Cong.,  3CI  Sess.,  pp.  61-63. 

4 This  view  was  modified  in  1828.  1  Ibid.,  Vol,  IV,  p.  190. 

S  Annals,  7th  Cong.,  ist  Sess.,  Vol.  II,  p.  1844.  ^ Ibid,,  p,  154. 

(>U,  S.  Statutes  at  Large,  Yo\,  III,  p.  315.  9^««a/.r,  19th  Cong.,  ist  Sess.,  Vol.  II,p.369. 

10  Power  of  the  United  States  to  exercise  the  right  of  eminent  domain  in  the  territories  may  be  sought 
in  U.  S.  Statutes  at  Large,  \o\.  IX,  p.  439;  opinions  of  attorney-general,  /<5/^.,  Vol.  VII,  p.  320; 
Cherokee  Nation  vs,  Kansas  Railroad  Co.,  135  U.  S.,  p.  641. 


PRELIMINARY    CONSTITUTIONAL    CONSIDERATIONS  45 

United  States  exercised  were  not  seriously  contested  by  private  indi- 
viduals, as  no  cases  were  brought  to  issue  before  the  courts  prior  to  the 
Civil  War.  These  acts  are  cited  to  show  that  the  policy  of  the  United 
States  in  constructing  roads  with  or  without  the  consent  of  the  states 
through  whose  territory  they  passed  is  the  policy  that  was  pursued  with 
reference  to  the  Cumberland  Road.  This  policy  becomes  stronger  in 
the  thirties  and  forties,  as  the  state-rights  theory  of  sovereignty  became 
more  prominent.  It  is  well  illustrated  in  the  treatment  of  the  Cumber- 
land Road  question  in  Illinois. 

The  contest  between  Illinois  and  Missouri  already  detailed'  showed 
Illinois  and  the  congressmen  of  the  day  fully  imbued  with  the  state- 
rights  theory  of  sovereignty.  The  struggle  between  these  two  states 
was  over  the  question  whether  the  Cumberland  Road  should  cross  the 
Mississippi  at  St.  Louis  or  at  Alton.  This  struggle  became  so  intense 
that  the  Illinois  legislature  passed  the  following  resolution  in  1834: 

Resolved,  That  the  consent  of  the  state  of  Illinois  is  hereby  given  to  the 
Federal  Government  to  extend  the  National  Road  through  the  territory  of  the 
said  state  so  as  to  cross  the  Mississippi  River  at  the  town  of  Alton  and  at  no 
other  point.= 

Mr.  Reynolds,  Illinois's  representative  in  the  House  of  Representa- 
tives, defended  the  resolution.  He  said  that  Illinois  was  acting  on  the 
principle  of  state  rights.  No  gentleman,  he  said,  would  vote  for  such 
an  important  improvement  as  the  National  Road  contrary  to  the 
expressed  will  of  the  state  in  which  it  was  located.  If  Congress  had 
such  power,  this  meant  that  the  government  of  the  United  States  was  a 
consolidated  government,  which  was  contrary  to  the  Constitution.  He 
showed  that  the  consent  of  every  state  through  which  the  road  passed 
had  been  asked  and  granted.  According  to  Reynolds,  Congress  had 
no  power  to  act  without  the  consent  of  the  state  of  Illinois.  There- 
fore, if  the  road  was  located  at  all,  it  must  be  at  Alton.' 

In  1844  the  Illinois  legislature  memorialized  Congress  to  extend 
the  road  to  Alton,  and  reiterated  its  undoubted  right  to  give  or  with- 
hold its  consent  for  the  continuation  of  the  road."  The  committee 
called  attention  to  the  fact  that  the  act  of  1806  required  the  consent  of 
the  states  through  which  the  road  passed.  After  examining  the  Vir- 
ginia act  which  permitted  the  road  to  pass  through  her  territory,  the 
committee  called  attention  to  the  fact  that  Virginia  had  specifically 
declared  that  the  road  could  be  constructed  only  with  the  consent  of 

I  See  p.  28.  2  Congressional  Debates^  24th  Cong.,  2d  Sess.,  Vol.  XIII,  p.  1132. 

Zibid.,  Part  I,  pp.  1133,  1134.  4  Senate  Documents,  Vol.  Ill,  No.  196,  24th  Cong.,  ist  Sess. 


46  THE    CUMBERLAND    ROAD 

the  state,  and  that  something  more  than  mere  consent  was  necessary  to 
authorize  the  United  States  to  exercise  the  right  of  eminent  domain. 
This  could  be  done  only  by  the  sovereign  state —  under  authority  of 
state  law  and  by  state  officers.  This  method  was  approved  by  the  com- 
mittee. It  quoted  with  approval  the  resolution  of  the  Illinois  legis- 
lature in  1834,  and  suggested  that  the  contention  of  a  sovereign  state 
like  Illinois  was  well  taken.'  Again  in  1845  this  report  was  brought 
forward  in  the  Senate,^  but  the  bill  to  locate  the  road  failed.  January 
16,  1847,  the  state-rights  contention  of  Illinois  made  its  last  appear- 
ance in  the  Senate.  The  Senate  Committee  on  Roads  and  Canals 
recommended  that  the  road  be  located  to  Alton.  The  resolution  of 
the  Illinois  legislature  in  1834,  together  with  the  committee's  report  of 
1844  and  1845,  was  made  the  basis  of  this  report. 

Senator  Semple,  of  Illinois,  in  his  letter  to  the  committee  declared 
the  consent  of  Illinois  necessary  to  the  location  of  the  road ;  that  the 
resolution  of  1834  was  still  in  force  and  would  never  be  rescinded; 
that  the  state  of  Illinois  would  not  be  coerced  by  the  United  States  ; 
that  she  would  not  yield  simply  because  Congress  refused  to  construct 
the  road  west  of  Vandalia.  The  committee  was  in  full  sympathy  with 
the  Illinois  contention.  Congress  did  not  adopt  the  recommendation 
of  the  committee  to  locate  the  road  to  Alton.  This  was  not  simply 
because  Congress  was  opposed  to  the  Illinois  doctrine  of  state  consent 
and  eminent  domain,  but  because  railroads  were  superseding  wagon 
roads,  and  because  of  constitutional  objection  against  carrying  on  inter- 
nal improvements  of  this  character  after  the  road  had  been  surrendered  to 
the  states  of  Maryland,  Pennsylvania,  Virginia,  and  Ohio  in  the  thir- 
ties.3  It  is  clear  that  the  Illinois  doctrine  of  eminent  domain  had 
much  to  do  with  defeating  the  extension  of  the  road  west  of  Vandalia. 
Had  she  not  passed  the  resolution  of  1834,  in  all  probability  the  road 
would  have  been  located  to  the  Mississippi  River,  and  then  to  Jefferson 
City,  thus  completing  the  original  compact.  Her  policy  was  one  of 
dictation  and  obstruction,  until  the  temper  of  Congress  was  against  the 
further  extension  of  the  road. 

This  discussion  of  the  right  of  the  United  States  to  construct  roads 
within  the  territory  of  the  states  reveals  a  consistent  attitude.  It  was 
done  only  with  the  consent  of  the  states  through  which  the  road  passed. 

I  Senate  Documents,  Vol.  V,  No.  324,  28th  Cong.,  ist  Sess. 
■^Ibid.^  Vol.  II,  No.  41,  28th  Cong.,  2d  Sess. 
Zibid.,  Vol.  II,  No.  70,  29th  Cong.,  2d  Sess. 


PRELIMINARY    CONSTITUTIONAL    CONSIDERATIONS  47 

The  discussions  at  the  close  of  the  Cumberland  Road  period  (1847) 
show  the  states  even  more  determined  in  their  state-right  views  than  in 
1806.  The  continuation  of  the  road  west  of  Vandalia  was  really  deter- 
mined on  this  point' 

I  This  doctrine  has  been  superseded  since  the  Civil  War.  See  (i)  U.  S.  Statutes  at  Large,  No\. 
XV,  p.  124;  (2)  Congressional  Globe,  40th  Cong.,  2d  Sess.,  Part  I,  p.  69;  (3)  Laws  of  Iowa,  1868, 
Chap.  7,  p.  6;  (4)  Kohl  vs.  United  States,  91  U.  S.  ^67;  First  Supplement,  Revised  Statutes  of  the 
United  States,  p.  601. 


V.  ATTEMPTS  TO  BROADEN  THE  INTERNAL-IMPROVE- 
MENT POLICY. 

No  sooner  was  the  "compact"  theory  of  the  Cumberland  Road 
adopted  than  efforts  were  made  to  broaden  the  plan.  President 
Jefferson  was  a  warm  advocate  of  internal  improvements;  but  he 
thought  Congress  did  not  have  authority  under  the  Constitution  to 
inaugurate  such  a  policy,  hence  his  suggestion  of  an  amendment.  The 
war  debt  was  almost  liquidated,  and  a  large  surplus  was  accumulating 
in  the  federal  treasury.  In  1807  a  senator  from  Ohio  secured  the 
passage  of  a  resolution  requesting  Gallatin,  Jefferson's  able  secretary 
of  the  treasury,  to  submit  a  national  plan  of  internal  improvements.* 

In  response  to  the  Senate  resolution,  Gallatin  submitted  his  famous 
report  of  April  6,  1808,  taking  one  year  for  its  preparation.  This  able 
financier  was  the  father  of  the  "2  per  cent,  fund"  for  the  Cumberland 
Road,  and  this  report  was  only  a  step  in  advance.  He  first  dealt 
with  the  subject  of  coastwise  canals  and  roads  to  bind  the  North  and 
the  South  together.  Next  he  advocated  the  construction  of  four  great 
roads  over  the  Alleghany  Mountains  to  connect  the  eastern  and  the 
western  waters.  He  estimated  that  this  system  of  improvements  would 
cost  $20,000,000;  but  the  surplus  in  the  treasury  was  accumulating 
at  the  rate  of  $5,000,000  a  year ;  therefore  he  recommended  that 
$2,000,000  a  year  be  set  aside  for  ten  years,  or  that  the  sales  of  more 
public  lands  be  devoted  to  defraying  the  expenses  of  this  comprehen- 
sive internal-improvement  system." 

As  to  the  manner  of  applying  public  aid  to  these  improvements 
Gallatin  said : 

It  is  evident  that  the  United  States  cannot  under  the  Constitution  open 
any  road  or  canal  without  the  consent  of  the  state  through  which  such  road 
or  canal  must  pass.  In  order,  therefore,  to  remove  every  impediment  to  a 
National  plan  of  internal  improvements,  an  amendment  to  the  Constitution 
was  suggested  by  the  executive  when  the  subject  was  recommended  to  the 
consideration  of  Congress.  Until  this  be  obtained,  the  assent  of  the  States 
being  necessary  for  each  improvement,  the  modifications  under  which  that 
assent  may  be  given  will  necessarily  control  the  manner  of  applying  the 

money The  moneys  may  be  applied  in  two  different  manners.     The 

United  States  may,  with  the  assent  of  the  states,  undertake  some  of  the  works 

I  McMaster,  History  of  the  United  States,  Vol.  Ill,  p.  473. 
^Miscellaneous  State  Papers^  Vol.  I,  p.  724. 

48 


INTERNAL-IMPROVEMENT    POLICY  49 

at  their  sole  expense,  or  they  may  subscribe  a  certain  number  of  shares  of 
stock  in  companies  incorporated  for  the  purpose.     Loans  might  also,  in  some 

instances,  be  made  to   such  companies At  present  the  only  work 

undertaken  by  the  United  States  at  their  sole  expense,  and  to  which  the 
assent  of  the  states  has  been  obtained,  is  the  road  from  Cumberland  to 
Brownsville ;  an  appropriation  may,  for  that  purpose,  be  made  at  any  time. 
In  relation  to  all  other  works,  the  United  States  have  nothing  at  this  time  in 
their  power  but  to  assist  those  already  authorized,  either  by  loans  or  by 
becoming  stockholders  and  the  last  mode  appears  the  most  eligible. =" 

Had  Gallatin  not  taken  a  year  for  the  preparation  of  this  report,  it 
might  have  received  a  kind  reception  and  prompt  action  in  putting  its 
recommendations  into  effect.  But  the  report  was  made  three  months 
after  the  embargo  was  laid.  The  surplus  in  the  treasury  was  thereby 
threatened ;  therefore  the  general  plan  of  internal  improvements  was 
not  inaugurated  in  1808. 

Gallatin's  plans  were :  (i)  an  amendment  authorizing  Congress  to 
enter  upon  internal  improvements ;  (2)  an  appropriation  for  the  con- 
struction of  the  Cumberland  Road,  which  had  already  been  assented 
to;  (3)  a  system  of  loans  to  companies  incorporated  for  internal- 
improvement  purpdses ;  (4)  the  purchase  of  stock  of  internal-improve- 
ment companies.  Of  these  only  the  second,  relating  to  the  construction 
of  the  Cumberland  Road,  could  be  acted  on,  because  (i)  the  amend- 
ment could  not  be  secured;  (2)  the  surplus  in  the  treasury  could  not 
be  counted  on ;  (3)  the  United  States  was  already  committed  to  the 
construction  by  means  of  the  "compact"  with  Ohio;  (4)  there  was  a 
land  fund  slowly  accumulating  in  the  treasury  for  road  purposes,  and 
"advances"  might  be  made  from  the  treasury  reimbursable  from  this 
fund.  So  internal  improvements  must  continue  to  be  made  under  this 
fiction. 

The  first  appropriation  for  the  road  had  been  made  two  years 
before.  The  next  one  was  not  made  until  18 10.  Hard  times  had  set  in 
and  the  surplus  in  the  treasury  had  melted  away.  The  appropriations 
for  the  Cumberland  Road  after  the  first  appropriation  in  1806  were  as 
follows : 

1 810 $  60,000 

181 1 50,000 

18 1 2 30,000 

1813 140,000 

181 5 100,000 


Total      -----     $380,000 

^Miscellaneous  State  Papers,  Vol.  I,  p.  741. 


50  THE    CUMBERLAND    ROAD 

The  contract  for  the  first  ten  miles  was  let  in  1811,  but  the  work 
progressed  slowly.  As  the  construction  was  proving  twice  as  expensive 
as  had  been  estimated  at  first,  and  as  the  national  resources  were  used 
for  sinews  of  war,  the  outlook  for  the  road  became  discouraging.  But 
with  the  close  of  the  war  a  real  feeling  of  national  pride  took  posses- 
sion of  the  American  people,  who  realized  that  they  were  now  for  the 
first  time  cut  loose  from  European  dependence.  Naturally  the  desire 
for  internal-improvements  shared  in  this  renaissance.  The  war  had 
taught  the  need  of  military  roads  and  a  system  of  internal  communica- 
tion for  the  movement  of  troops  and  products.  In  18 16  the  appro- 
priation for  the  Cumberland  Road  was  $300,000.  Nor  was  this  the 
only  manifestation  of  the  internal-improvement  spirit.  Certain  forces 
were  at  work  for  a  general  advance.  The  close  constructionists  had 
been  in  office  since  the  election  of  Jefferson,  but  they  in  practice  had 
adopted  many  of  the  loose  constructionist  policies  of  the  Federalists : 
(i)  an  embargo  had  been  laid  ;  (2)  Louisiana  had  been  purchased  (i  803) 
and  a  new  state  carved  from  its  territory  (18 12);  (3)  the  state  militia 
had  been  called  out  by  the  President  against  the  wishes  of  some  states ; 
(4)  a  high  protective  tariff  had  been  passed ;  (5)  a  United  States  bank 
had  been  chartered. 

In  return  for  the  charter  the  bank  was  to  pay  the  United  States 
$1,500,000;  also  annual  dividends  on  the  stock  held  by  the  United 
States.  The  sums  appropriated  for  the  Cumberland  Road  in  the  way 
of  "advances-"  amounted  in  1816  to  $410,000,  but  in  this  year  the 
annual  appropriation  was  $300,000.  Visions  of  large  improvements 
appeared  before  the  statesmen  of  the  day.  The  bonus  from  the 
United  States  bank  promised  a  large  fund;  and  it  was  proposed  to 
use  it  for  internal  improvements.  A  second  attempt  to  broaden  the 
internal-improvement  policy  by  abandoning  the  compact  theory  on 
admission  of  states  was  to  be  made. 

The  supporters  of  the  "  bonus  bill "  had  much  to  hope  from  the  Presi- 
dent. He  had  approved  bills  for  a  national  bank  and  for  a  tariff  for 
the  protection  of  American  industries,  and  had  in  a  formal  way  brought 
to  the  attention  of  Congress  the  subject  of  internal  improvements. 
In  his  annual  message  of  December  5,  181 5,  he  urged  the  importance 
of  establishing  throughout  the  country  the  "  roads  and  canals  which 
can  best  be  executed  under  national  authority."  He  thought  the 
economic  and  political  results  of  such  improvements  would  be  very 
wholesome  ;  but  declared  "it  a  happy  reflection  that  any  defect  of  con- 
stitutional authority  which  may  be  encountered  can  be  supplied  in   a 


INTERNAL-IMPROVEMENT    POLICY  5  I 

mode  which  the  Constitution  itself  has  providently  pointed  out.^ 
Again,  in  the  annual  message  of  December  3,  1816,  Madison  said  : 

And  I  particularly  invite  again  their  attention  to  the  expediency  of  exercis- 
ing their  existing  powers,  and,  where  necessary,  of  resorting  to  the  prescribed 
mode  of  enlarging  them,  in  order  to  effectuate  a  comprehensive  system  of 
roads  and  canals,  such  as  will  have  the  effect  of  drawing  more  closely 
together  every  part  of  our  country .= 

Both  these  recommendations  strongly  favor  internal-improvements  at 
national  expense ;  but  they  also  point  out  that  a  constitutional  amend- 
ment is  necessary.  However,  inasmuch  as  the  bank  bill  and  tariff 
measures  had  received  executive  approval,  it  was  hoped  the  "bonus 
bill"  would  fare  likewise. 

The  bill  was  introduced  in  the  House  on  the  recommendation  of  a 
special  committee,  of  which  Calhoun  was  chairman.  It  provided  for 
setting  aside  the  bonus  given  for  the  charter  of  the  United  States  Bank, 
and  the  dividend  arising  from  the  shares  held  by  the  United  States ; 
thus  establishing  a  permanent  fund  to  be  administered  under  the 
direction  of  the  secretary  of  the  treasury.  The  fund  was  to  be  applied 
by  Congress  to  the  construction  of  roads  and  canals  in  each  state,  with  the 
consent  of  the  states.  These  improvements  were  to  be  such  as  would 
"conduce  to  the  general  welfare."  The  apportionment  of  a  state  was 
in  proportion  to  its  representation  in  the  House,  and  might  be  applied 
in  any  other  state  with  the  first  state's  consent.^ 

Mr.  Calhoun,  in  defending  this  bill,  advanced  doctrines  strongly 
national  in  their  character.  He  pointed  out  the  economic  advantages 
of  a  system  of  internal-improvements,  and  suggested  that  then  was  the 
opportune  time  to  pass  the  bill,  as  the  people  were  at  peace,  and 
were  turning  their  attention  to  questions  of  national  importance.  This 
might  well  be  done,  because  the  resources  would  accumulate  rapidly 
for  the  purpose.  He  pointed  out  the  lack  of  military  roads  during 
the  War  of  181 2,  and  passed  to  the  great  extent  of  our  country,  the 
growth  of  population,  and  the  danger  of  disunion  growing  out  of  such 
conditions.  -- — 

We  are  great  and  rapidly — I  was  about  to  say  fearfully  —  growing. 
This  is  our  pride  and  danger — our  weakness  and  our  strength What- 
ever impedes  the  intercourse  of  the  extremes  with  this  center  of  the  Republic 
weakens  the  Union.  Let  us  then  bind  the  Republic  together  with  a  perfect 
system  of  roads  and  canals.     Let  us  conquer  space. 

''■Messages  and  Papers  of  the  Presidents,  Vol.  I,  p.  567. 
2/(5z'rf.,  p.  576.  3^««a/j,  14th  Cong.,  2d  Sess.,  p.  1061. 


oJ!}'-^^' 


52 


THE  CUMBERLAND  ROAD 


In  reply  to  the  constitutional  objection  to  such  a  bill,  Calhoun  said 
that  he  was  no  advocate  of  refined  arguments  on  the  Constitution. 
The  instrument  was  not  intended  as  a  thesis  for  the  logician  to 
exercise  his  ingenuity  on.  It  ought  to  be  construed  with  plain  good 
sense.  He  denied  that  Congress  was  restricted  to  the  enumerated 
powers.  He  thought  "the  general  welfare"  clause  stood  on  the  same 
footing  as  other  clauses.  Furthermore,  the  continued  practice  of  the 
government  was  in  harmony  with  his  contention.     He  said  : 

We  granted  by  unanimous  vote,  or  nearly  so,  fifty  thousand  dollars  to  the 
distressed  inhabitants  of  Caraccas,  and  a  very  large  sum,  at  two  different 
times,  to  the  Saint  Domingo  refugees.  If  we  are  restricted  in  the  use  of  our 
money  to  the  enumerated  powers,  on  what  principle  can  the  purchase  of 
Louisiana  be  justified?  To  look  no  further  back,  at  the  last  session  a  con 
siderable  sum  was  granted  to  complete  the  Cumberland  Road.^ 

At  the  conclusion  of  this  speech,  Pickering  addressed  the  House, 
seeking  to  controvert  the  "  latitudinarian  doctrines"  of  Calhoun  in 
regard  to  the  "general  welfare."  If  such  a  construction  were  admitted, 
he  said,  then  the  careful  enumeration  of  powers  was  useless.  If  there 
was  the  power  to  construct  roads  and  canals,  it  was  an  implied  power 
growing  out  of  the  power  "to  regulate  commerce  with  the  foreign 
nations  and  among  the  several  states  and  with  the  Indian  tribes,"  and 
not  out  of  the  "general  welfare"  clause.  Mr.  Root,  of  New  York, 
would  confine  the  expenditure  to  canals,  as  there  would  be  less  inter- 
ference with  "state  rights  and  sovereignty."  Mr.  Robertson, of  Louis- 
iana, opposed  the  bill  because  it  called  for  "too  much  intermeddling 
on  the  part  of  the  General  Government."''  He  thought  this  country 
owed  its  greatness,  not  to  legislation,  but  to  circumstances  independent 
of  laws  —  to  "our  Constitution,  soil,  climate,  increasing  population, 
and  exemption  from  the  paternal  care  of  government."  Mr.  Clay,  the 
speaker,  thanked  Calhoun  for  his  "luminous  speech."  He  had  no 
doubts  as  to  the  expediency  and  constitutionality  of  the  bill.  Mr.  Clay 
cited  the  Cumberland  Road,  which  would  be  completed  to  Wheeling 
in  about  three  years,  as  a  good  example  of  the  benefits  to  be  derived 
from  national  improvements.  The  time  from  Baltimore  to  Wheeling  was 
by  its  construction  being  reduced  from  eight  to  three  days.  Mr.  Smith 
of  Maryland  admitted  the  advantage  of  improvements  national  in 
character,  and  cited  the  Cumberland  Road;  but  denied  that  it  was  con- 
structed from  the  United  States  Treasury,  but  from  the  "  2  per  cent, 
fund"  which  originated  in  the  compact  between  the  United  States  and 

^Annals,  14th  Cong.,  2d  Sess.,  pp.  851-58.  ^Ibid.,  pp.  851-58. 


INTERNAL-IMPROVEMENT    POLICY  53 

Ohio.  The  improvements  provided  for  by  the  "bonus  bill"  in  all 
probability  would  be  local  and  not  national,  because  each  state  must 
receive  its  apportionment/  Mr.  Wilson,  of  Pennsylvania,  thought  "the 
spirit  of  the  Constitution"  justified  passing  the  bill."  Mr.  Ross,  of 
Pennsylvania,  pointed  out  the  awful  results  that  would  follow  the 
making  of  roads,  even  admitting  their  constitutionality  under  the  war 
powers  of  Congress. 

What  next  ?     War  !     War !    is  the  cry  which  will  next  resound  within 

these  walls Then,  then,  we  shall  enjoy  the  sublime  spectacle  of  seeing 

our  citizens  chained  to  the  chariots  of  the  victor,  with  his  garments  rolled  in 
blood.3 

The  bill  passed  the  House  by  a  vote  of  86  to  84. 

In  the  Senate,  Daggett,  of  Connecticut,  opposed  the  bill  on  consti- 
tutional grounds.  He  did  not  think  it  could  be  justified  under 
"  general  welfare,"  "  power  to  regulate  commerce  among  the  states,"  or 
power  "to  establish  post-offices  and  post-roads."  He  thought  the 
practice  in  regard  to  the  Cumberland  Road  dangerous,  and  not  to  be 
taken  as  a  criterion.  Nor  did  he  think  this  could  be  done  "with  the 
assent  of  the  states."  He  asked  :  "  Can  a  law  be  made  with  the  con- 
sent of  the  states,  which  is  not  warranted  by  the  Constitution?"  He 
remarked  that  different  presidents  had  recommended  internal  improve- 
ments, but  always  with  the  suggestion  that  a  constitutional  amendment 
was  necessary ."*  Mr.  Macon,  of  North  Carolina,  thought  the  bill  too 
general  in  character.  He  thought  it  looked  more  like  constitution- 
making  than  legislating.^ 

The  bill  passed  by  a  vote  of  20  to  15.^  It  reached  the  President  at 
the  very  close  of  his  second  administration.  He  might  have  applied  the 
"pocket  veto,"  but  followed  the  more  courageous  course  and  returned 
it  with  his  objections  to  the  House  March  3,  181 7. 

He  vetoed  the  bill  on  the  ground  that  it  was  unconstitutional.  He 
did  not  think  it  was  included  among  the  enumerated  powers ;  nor  did 
it  fall  by  any  just  interpretation  within  the  power  "to  make  laws 
necessary  and  proper  for  carrying  into  execution  the  enumerated 
powers;"  and  it  would  have  a  tendency  to  subjugate  the  Constitution 
and  laws  of  the  states  to  the  laws  of  the  United  States.  He  denied  the 
power  of  the  United  States  to  appropriate  money  for  or  to  construct 
such  improvements ;  nor  could  either  of  these  be  done  even  with  the 
consent  of  the  states.     The  only  way  a  state  could  give  its  consent  was 

i^««a/j,  14  Cong.,  2d  Sess.,  p.  885.  3/^z'rf.,  p.  914.  Slbid.,-p.  r-jj. 

2  Ibid.,  p.  900.  A  Ibid.,  p.  172.  ^  Ibid.,  p.  iqi. 


54  THE    CUMBERLAND    ROAD 

by  means  of  an  amendment  to  the  Constitution  granting  power  over 
internal  improvements.  He  therefore,  strongly  urged  such  an  amend- 
ment, as  he  was  favorable  to  a  national  system  of  internal  improve- 
ments/ It  is  thus  seen  that  Madison  did  not  distinguish  between  the 
power  (i)  to  appropriate  without  constructing;  (2)  to  appropriate  and 
construct;  (3)  to  appropriate,  construct,  and  administer  or  exercise  jur- 
isdiction.    Important  distinctions  were  soon  made  in  these  respects. 

Of  course,  in  the  hurry  of  the  last  day  of  an  expiring  Congress  the 
measure  could  not  be  debated  again.  A  vote  was  immediately  taken 
on  whether  the  bill  should  pass  in  spite  of  the  President's  objections. 
The  vote  was  60  to  56.°  A  majority  of  the  house  remained  uncon- 
vinced by  the  president's  veto  message;  but  the  constitutional  majority 
of  two-thirds  was  not  secured,  and  the  first  real  internal-improvement 
bill,  based  on  broad  construction  of  the  constitution,  was  dead. 

An  analysis  of  the  vote  shows  New  England  almost  solidly  arrayed 
against  such  improvements.  The  middle,  extreme  southern,  and  west- 
ern states  favored  it.  Virginia  and  North  Carolina  opposed  it.  The 
vote  in  the  Senate  on  the  original  bill  showed  about  the  same  align - 
ment.3 

There  is  considerable  significance  in  these  two  attempts  at  a  com- 
prehensive internal-improvement  policy.  Gallatin's  famous  report 
showed  a  tendency  to  break  away  from  the  "  Cumberland  Road  com- 
pact," as  the  federal  treasury  promised  a  surplus  ;  but  to  return  to  the 
shelter  of  the  "compact"  when  hard  times  came  on  as  a  result  of  the 
embargo  and  the  War  of  18 12.  The  war  revealed  the  necessity  for 
roads,  and  led  to  the  national  feeling  which  resulted  in  chartering  the 
United  States  Bank  and  passing  a  protective  tariff.  Madison  had  been 
coerced  into  a  declaration  of  war,  had  signed  two  bills  strongly  national 
in  character,  but  vetoed  the  "bonus  bill"  on  the  ground  of  its  uncon- 
stitutionality. He  had  no  more  political  ambitions  to  satisfy ;  hence 
he  was  true  to  his  original  Republican  doctrines. 

The  Cumberland  Road  furnished  arguments  for  both  factions  in 
Congress.  One  side  said  that  as  the  improvement  was  a  success  com- 
mercially and  politically;  we  should  depart  from  the  "compact"  theory 
and  establish  a  comprehensive  system  of  internal-improvements.  The 
other  side,  including  the  President,  said  that  the  Cumberland  Road 
was  a  good  improvement,  but  a  departure  from  the  "compact"  theory 
for  a  general  internal-improvement  policy  was  not  justified  unless  an 
amendment  granting  the  power  should  be  adopted. 

I  Messages  and  Papers  of  the  Presidents,  Vol.  I,  p.  584. 

'i Annals,  14th  Cong.,  zd  Sess.,  p.  1061.  3 Ibid.,  p.  191. 


VI.      JURISDICTION;    "THE    CUMBERLAND    ROAD    GATE- 
BILL  OF   1822." 

I.  Jurisdiction. — Madison's  veto  of  the  "bonus  bill"  placed  a  tem- 
porary check  on  the  rising  spirit  of  nationality.  It  called  a  halt  and  a 
return  to  the  method  of  appropriations  for  the  Cumberland  Road 
reimbursable  from  the  "2  per  cent,  fund  ; "  but  in  the  excitement  of  the 
discussion  on  the  "bonus  bill"  even  the  annual  appropriation  for  this 
improvement  was  forgotten.  However,  in  1818  the  sum  of  ^312,984.- 
60  was  appropriated.  The  fund  pledged  for  its  payment  included  land 
sales,  not  only  in  Ohio,  but  also  in  Indiana  and  Illinois. 

It  was  this  territorial  expansion  and  the  rising  tide  of  popular  feel- 
ing in  favor  of  internal  improvements  that  led  Congress  to  fly  again  in 
the  face  of  executive  opposition.  The  issue  was  joined  in  the  "Cum- 
berland Road  Gate-Bill  of  1822;"  but  there  was  considerable  fencing 
before  Congress  and  the  President  closed  for  the  constitutional  combat. 

It  must  be  remembered  that  the  power  to  construct  internal  improve- 
ments was  not  a  specific  delegation  in  the  Constitution.  The  Consti- 
tutional Convention  provided  for  a  state  internal-improvement  fund  by 
means  of  tonnage  duties  levied  with  the  consent  of  Congress;'  but  the 
western  states,  moved  by  commercial  motives,  and  the  United  States, 
moved  by  political  motives,  entered  into  "compacts"  for  the  construc- 
tion of  the  Cumberland  Road.  This  road  was  to  be  constructed 
through  the  states  only  with  their  consent.  Congress  made  no  provi- 
sion for  exercising  the  right  of  eminent  domain.  The  states  granted 
the  right  of  way,  and  allowed  the  United  States  to  expropriate  private 
property  under  state  laws  and  through  state  officers.""  The  state  con- 
sent once  given,  the  president  exercised  a  free  hand  in  location  and 
construction.  This  left  in  abeyance  the  whole  question  of  the  preser- 
vation and  repair  of  the  road.  Granting  that  the  United  States  could, 
under  "compact,"  appropriate  for  and  provide  the  administrative 
machinery  for  constructing  such  an  improvement,  where  was  lodged 
the  authority  to  protect  it  when  once  constructed  ?  Could  the  United 
States  erect  toll-gates  and  enforce  the  collection  of  tolls,  provide  offi- 
cers to  police  the  road,  and  punish  criminal  acts  of  destruction  ?  In  a 
word,  could  the  United  States  exercise  jurisdiction  over  the  road  after 
it  had  appropriated  for  and  constructed  it  ? 

I  See  pp.  37.  2  See  p.  40. 

55 


56  THE    CUMBERLAND    ROAD 

Although  the  first  appropriation  for  the  road  was  made  in  1806, 
the  contract  for  the  first  ten  miles  was  not  let  until  May  8,  181 1. 
The  location  followed  in  general  the  old  Braddock  Road.  So  great 
was  the  demand  for  the  road  that  before  the  first  letting  was  really 
finished  repairs  were  needed.  It  was  in  this  way  that  the  question  of 
tolls,  and  therefore  federal  jurisdiction,  arose.  In  181 2  Gallatin,  trans- 
mitting the  report  of  the  superintendent  of  the  road,  stated  that  the 
superintendent  recommended  that  the  United  States  levy  tolls  for  repairs. 
But  Gallatin  observed  that  this  could  only  be  done  under  authority  of 
the  State  of  Maryland-'  A  House  committee,  April  14,  1812,  reported 
in  favor  of  levying  a  toll  sufificient  to  keep  the  road  in  repair.^  In 
181 3  David  Shriver,  the  superintendent,  reported  that  Maryland 
expected  to  pass  a  law  authorizing  the  President  to  receive  tolls  for  the 
purpose  of  repairing  the  road ;  also  to  prevent  abuses  against  the 
road. 3  Again,  in  181 5,  Secretary  Dallas,  in  transmitting  his  report, 
stated  that  provisions  for  keeping  the  road  in  repair,  and  for  prevent- 
ing abuses  to  the  work  by  reckless  persons,  were  necessary,  but  that 
Congress  had  no  constitutional  authority  to  make  such  provision. 
He  thought  such  measures  could  proceed  only  from  the  legislatures  of 
the  states  through  which  the  road  passed.  He  said  that  the  part  com- 
pleted at  that  time  was  wholly  within  the  state  of  Maryland.  The 
state  had  not  yet  yielded  to  the  requests  made  for  such  legislation,  but 
it  was  thought  she  would  do  so  ultimately.'* 

With  reference  to  preventing  the  destruction  of  the  road,  a  House 
committee,  on  March  23,  1816,  reported: 

It  appears  that  the  Secretary  of  the  Treasury,  in  his  letter  communicated 
at  the  last  session,  doubts  the  authority  of  Congress  to  pass  any  laws  for 
punishing  the  offenders.  The  committee  do  not  perceive  any  defect  of 
jurisdiction.  Without  controverting  the  opinion  that  the  commission  does 
not,  in  virtue  of  any  grant  of  power  conferred  by  that  instrument,  authorize 
Congress  to  open  roads  and  canals  in  any  state,  it  seems  to  be  admitted  by  all 
that  if  a  compact  be  made,  for  which  the  nation  receives  an  equivalent  as  in 
this  case,  whereby  it  is  agreed  that  a  road  shall  be  opened  by  the  Govern- 
ment of  the  Union,  and  the  states  through  which  the  road  passes  grant  the 
right  to  make  it,  the  performance  of  such  compact  is  not  in  contravention  of 
that  construction,  as  it  is  believed  that  the  exercise  of  such  power  has,  in  no 
instance,  been  doubted,  notwithstanding  the  repeated  acts  of  legislation  for 
a  period  of  thirteen  years.  The  permission  of  such  states  having  been  given, 
it  follows,  as  a  necessary  consequence,  that  all  the  powers  obviously  necessary 

I  Miscellaneous  State  Papers^  Vol.  II,  p.  175.  3 Ibid.,  p.  205,  12  Cong.,  2d  Sess. 

^  Ibid.,  p.  182.  4  Ibid.,  p.  272,  13th  Cong.,  3d  Sess. 


JURISDICTION  57 

and  proper  to  carry  the  grant  into  complete  effect,  and  preserve  it  inviolable, 
have  been  conferred  also.  A  different  construction  would  render  the  consent 
a  nullity,  and  exempt  from  punishment  as  well  the  individuals  who  resisted 
the  execution  of  the  work,  as  those  that  afterwards  destroyed  it. 

If  the  right  to  punish  these  offences  belongs  to  the  National  Government, 
it  may  be  effected  without  the  passage  of  any  law,  by  indictment  or  infor- 
mation in  the  courts  of  the  United  States,  or  by  enacting  statutory  provisions 
fixing  the  penalties,  it  being  a  fundamental  right  of  the  judiciary  inherent  in 
every  Government  to  punish  all  offences  against  the  laws  passed  in  the  pur- 
suance of  a  delegated  power  independently  of  express  legislative  sanctions. 
Although  the  committee  deem  it  proper  to  make  this  explicit  assertion  of  a 
right  which  it  may  become  necessary  to  exercise  on  some  future  occasion,  in 
case  of  a  peremptory  refusal  by  a  state  to  pass  any  law  upon  the  subject,  yet, 
as  they  believe  that  no  such  disposition  exists  in  relation  to  the  road  in  ques- 
tion, and  that  prosecutions  under  state  laws  may  be  most  effective  in  prevent- 
ing the  practices  complained  of,  because  of  the  distances  to  places  where  the 
respective  Federal  courts  are  held,  they  abstain  from  recommending  at  this 
time  the  passage  of  any  law  upon  the  subject. '^ 

2.  Forces  Leading  to  the  Passage  of  the  "  Cumberland  Road  Gate- Bill 
of  1822'' — The  report  of  the  committee  indicated  what  would  be  the 
temper  of  Congress  on  the  question  of  jurisdiction,  if  the  necessity  for 
its  exercise  should  arise.  A  declaration  seemed  sufficient  at  that  time'; 
but  in  1822  this  feeling  found  expression  in  a  bill  for  federal  jurisdic- 
tion. This  action  was  not  taken  suddenly,  as  a  number  of  internal- 
improvement  forces  had  tended  toward  this  end  for  some  time  prior 
to  1822.     Some  of  these  tendencies  are  now  to  be  indicated. 

Although  Monroe,  the  new  President,  belonged  to  the  Virginia 
school  of  close-constructionists,  the  friends  of  internal-improvements 
thought  he  would  be  friendly  to  the  movement  and  not  veto  a  measure 
on  constitutional  grounds.  His  attitude  toward  the  subject  was  awaited 
with  enthusiastic  hopefulness. 

The  "bonus  bill"  was  the  most  important  question  before  the 
second  session  of  the  Fourteenth  Congress ;  but  Madison  had  blocked 
the  action  of  Congress ;  and  as  the  American  people  were  intensely 
interested  in  the  subject,  Monroe  thought  an  expression  from  him,  the 
incoming  President,  should  be  made;  hence  in  his  first  inaugural, 
March  4,  1817,  he  said  : 

Other  interests  of  high  importance  will  claim  attention,  among  which  the 
improvement  of  our  country  by  roads  and  canals,  proceeding  always  with  a 
constitutional  sanction,  holds  a  distinguished  place.^ 

1  Miscellaneous  State  Papers,  Vol.  II,  p,  301. 

2  Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  8. 


58  THE    CUMBERLAND    ROAD 

This  expression  was  but  an  earnest  of  the  treatment  of  the  subject  in 
his  first  annual  ipessage  to  Congress,  December  2, 1817.  Referring  to 
the  subject  of  internal  improvements,  he  said: 

As  this  subject  was  acted  on  by  Congress  at  the  last  session,  and  there  may 
be  a  disposition  to  revive  it  at  the  present,  I  have  brought  it  into  view  for  the 
purpose  of  communicating  my  sentiments  on  a  very  important  circumstance 
connected  with  it  with  that  freedom  and  candor  which  a  regard  for  the  public 
interest  and  a  proper  respect  for  Congress  require.  A  difference  of  opinion 
has  existed  from  the  first  formation  of  the  Constitution  ....  respecting 
the  right  of  Congress  to  establish  such  an  improvement.  Taking  into  view 
the  trust  with  which  I  am  now  honored,  it  would  be  improper  after  what  has 
passed  that  this  discussion  should  be  revived  with  any  uncertainty  of  my 
opinion  respecting  the  right.  Disregarding  early  impressions,  I  have  bestowed 
on  the  subject  all  the  deliberation  which  its  great  importance  and  a  just  sense 
of  my  duty  required,  and  the  result  is  a  settled  conviction  in  my  mind  that 
Congress  do  not  possess  the  right.  It  is  not  contained  in  any  of  the  speci- 
fied powers  granted  to  Congress,  nor  can  I  consider  it  incidental  to  or  a 
necessary  means,  viewed  on  the  most  liberal  scale,  for  carrying  into  effect 
any  of  the  powers,  which  are  specifically  granted.  In  communicating  this 
result  I  cannot  resist  the  obligation  which  I  feel  to  suggest  to  Congress 
the  propriety  of  recommending  to  the  states  the  adoption  of  an  amendment 
to  the  Constitution  which  shall  give  to  Congress  the  right  in  question.^ 
This  frank  declaration  clearly  placed  the  President  in  opposition  to  the 
policy  of  internal  improvements,  except  with  the  aid  of  a  constitutional 
amendment. 

This  part  of  the  message  was  referred  to  a  special  committee  in  the 
House,  of  which  Mr.  Tucker  was  chairman.  The  report  was  ready 
December  15,  1817.  This  report  is  to  be  considered  a  reply  to  the 
message.  The  committee  asserted  that  a  former  executive  veto  and 
the  known  hostility  of  the  present  President  should  not  deter  Congress 
from  considering  the  matter  : 

For,  if  the  constitutional  majority  of  the  two  Houses  should  differ  with  the 
Executive  Department,  the  opinion  of  the  latter,  however  respectable,  must 
yield  to  such  an  expression  of  their  will.^ 

The  laws  of  earlier  Congresses  were  passed  in  review  and  precedents 
found  in  favor  of  exercising  such  power.  The  practice  of  the  federal 
government  in  regard  to  the  Cumberland  Road  was  specially  cited. 
The  committee  showed  that  Congress  had  the  power  (i)  to  lay  out, 
construct  and  improve  post-roads;  (2)  to  open,  construct,  and  improve 

^Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  i8. 

2  Miscellaneous  State  Papers^  Vol.  II,  p.  443.  Mr.  Calhoun  had  been  given  a  place  in  Monroe's 
cabinet  as  secretary  of  war,  and  Clay  was  speaker. 


JURISDICTION  59 

military  roads ;  (3)  to  cut  canals  through  the  several  states  with  the 
assent  of  the  respective  states.  The  jurisdictional  power  over  the  soil 
in  all  cases  was  to  be  left  with  the  states.  Here  was  a  joining  of  the 
power  of  Congress  over  postal  matters,  military  affairs,  and  internal 
commerce.  But  the  committee  denied  that  it  was  resorting  to  a  liberal 
construction  of  the  Constitution,  although  such  would  be  justified. 

Would  the  House  sustain  the  committee  by  the  constitutional  two- 
thirds  majority  in  flying  in  the  teeth  of  executive  opposition  already 
made  known  in  the  annual  message?  The  committee's  resolution  and 
report'  went  to  the  Committee  of  the  Whole,  but  was  not  taken  up  for 
debate  until  March,  18 18.  Various  members  wanted  the  committee 
to  rise  out  of  courtesy  to  the  known  constitutional  objections  of  the 
President.  Clay  urged  the  House  to  a  full  consideration  of  the  subject. 
Tucker,  as  chairman  of  the  special  committee,  thought  the  national,  not 
local,  character  of  the  improvement  gave  it  both  its  importance  and  its 
constitutionality.''  He  said  that  the  Cumberland  Road,  which  was 
intended  to  bind  the  East  and  the  West  together,  should  not  be  abandoned 
simply  because  the  central  country  through  which  it  passed  derived 
small  advantage  from  its  construction,  or  that  improvements  of  a  large 
interstate  character  should  not  be  undertaken  simply  because  states 
were  forbidden  by  the  Constitution  to  contract  with  each  other.  Con- 
certed action  must  have  national  support.  On  the  proposition  to 
amend  the  Constitution,  Mr.  Tucker  thought  it  unnecessary  to  submit 
such  a  proposition,  as  three-fourths  of  the  states  must  ratify  for  an 
amendment.  This  gave  six  small  states  the  power  to  obstruct  what 
was  clearly  the  will  of  a  majority  of  Congress.  Mr.  Clagett,  of  New 
Hampshire,  was  opposed  to  the  resolution.  He  thought  the  committee 
was  contending  for  a  "latitudinous"  construction.  He  could  not  see 
a  justification  for  exercising  a  power  that  the  committee  feared  would 
be  denied  if  asked  for  in  the  constitutional  way  by  amendment.^  Mr. 
Hopkins  thought  the  United  States  had  power  to  make  improvements 
without  the  consent  of  the  states.'*  Mr.  Smyth,  of  Virginia,  would  not 
undertake  to  defend  the  constitutionality  of  the  method  of  appropriat- 
ing for  and  also  constructing  the  Cumberland  Road.     He  added  : 

The  power  which  it  is  now  proposed  to  exercise  is  the  power  to  legislate 
respecting  internal  police  and  local  interests,  with  the  assent  of  the  states,  and 
to  appropriate  the  money  of  the  particular  states  for  the  advancement  of  local 
interests.^ 

'^Miscellaneous  State  Papers^  Vol.  II,  p.  447.  3 Ibid.,  p.  1133. 

^Annals  of  Congress,  15th  Cong.,  ist  Sess.,  p.  1117.        A  Ibid.,  pp.  1136,  1137.        Sibid.,  p.  1140. 


60  THE    CUMBERLAND    ROAD 

Even  if  a  state  legislature  assented  to  the  exercise  of  such  a  power,  its 
successor  might  repeal  this  consent;^  nor  should  power  be  extended 
for  "beneficial  effects."  This,  he  said,  was  the  excuse  offered  by  Caesar, 
Cromwell,  and  Napoleon.  In  the  making  of  the  Cumberland  Road 
Congress  was  sensible  of  a  deficiency  of  power,  as  it  had  passed  no  laws 
for  the  protection  of  the  Road."* 

Mr.  Clay,  of  Kentucky,  favored  the  report  of  the  committee.  In 
his  opinion.  Congress  had  power  to  construct  roads,  even  without  the 
consent  of  the  states.  He  contended  that  when  a  road  is  constructed 
by  the  United  States,  they  have  a  jurisdiction  over  it  concurrent  with 
the  states  in  the  matter  of  protecting  it.^  He  wished  gentlemen  to 
elevate  their  views  to  the  height  this  nation  would  surely  reach ;  the 
country  was  large  and  extending ;  bind  these  interests  together ;  the 
Constitution  was  not  made  for  the  Atlantic  margin  of  states  merely, 
but  for  all ;  state  consent  for  internal  improvements  was  not  absolutely 
necessary,  but  perhaps  desirable.'*  Mr.  Cushman,  of  New  York,  thought 
the  power  might  be  exercised  with  the  consent  of  the  states,  citing 
congressional  control  that  had  come  about  through  state  consent.^  He 
said  the  power  to  make  roads  and  canals  was  nowhere  granted  in  the 
Constitution,  but  was  incidental  to  other  powers.  He  cited  the  consti- 
tution of  Ohio  in  case  of  the  Cumberland  Road,^  and  denied  that  this 
was  simply  a  commutation  of  the  state's  right  to  tax  United  States  lands 
in  return  for  a  road.  In  reply  to  the  suggestion  to  amend  the  Con- 
stitution, he  said  that  it  took  a  two-thirds  vote  of  Congress  and  three- 
fourths  of  the  states;  but  this  majority  of  three-fourths  of  the  states 
was  only  theoretical,  as  a  majority  in  six  states,  all  containing  a  popu- 
lation of  less  than  700,000  —  a  population  unequal  to  that  of  any  one 
of  three  single  states  and  not  a  twelfth  of  the  whole  —  could  prevent  an 
amendment.^  Mr.  Austin,  of  Virginia,  was  opposed  to  the  doctrine  of 
implied  power.  He  said  that  "you  imply  one  power,  and  then  you 
have  to  imply  another  to  carry  that  power  into  execution.  Thus  the 
implied  powers  become  an  original,  and  you  have  to  imply  a  dozen 
others  as  incidental."^  Mr.  Simpkins,  of  South  Carolina,  was  in  favor 
of  the  committee's  report.  In  his  opinion,  local  jealousies  militated 
against  the  interests  of  the  Union.  The  West  was  growing  rapidly. 
He  had  heard  it  said  that  the  great  ridge  of  mountains  dividing  the 
West  from  the  Atlantic  states  would  be  the  line  of  separation  between 
the  sections.     He  thought  the  "general  welfare  clause"  of  the  Consti- 

'i  Annals  of  Congress,  15th  Cong.,  ist  Sess.,  p.  1143.  Sibid,,  p.  1190.  7  Ibid,,  p.  1200. 

^Ibid.,  p.  1149.        3lbid.,  p.  1169.         A  Ibid.,  p.  1119.  ^  Ibid,,  p.  1194.  ^  Ibid,,  p.  1215. 


JURISDICTION  6l 

tution  sufificient,  but  this  was  strengthened  by  specified  powers,  to  which 
this  was  clearly  incidental,  being  necessary  to  the  execution  of  these 
powers.  Mr.  Simpkins  was  opposed  to  a  narrow,  technical,  lawyer-like 
construction  of  the  Constitution.'  Mr.  Johnson,  of  Virginia,  passed  in 
review  such  matters  as  chartering  a  United  States  Bank;  the  sending 
of  Chief  Justices  Jay  and  Ellsworth  on  diplomatic  missions  ;  the  passing 
of  the  alien  and  sedition  acts;  the  construction  of  the  Cumberland 
Road;  of  the  road  from  Nashville  to  Natchez,  and  especially  the  mili- 
tary road  from  Plattsburg  to  Sackett's  Harbor;  the  employment  of  a 
chaplain  by  Congress;  the  purchase  of  historical  paintings  for  the 
capitol;  and  pronounced  them  unconstitutional  because  they  were 
not  included  in  the  enumerated  powers.  He  thought  precedent  not  a 
safe  guide.  Repeating  an  error  did  not  make  it  legitimate.  Mr. 
Lowndes,  of  South  Carolina,  said  that  some  members  admitted  that 
roads  might  be  built  as  a  war  measure,  but  complained  that  these  same 
members  would  not  allow  these  roads  to  be  constructed  in  time  of 
peace. 

Was  it  not  evident  that  this  right  to  make  a  road  which  was  deduced  from 
the  laws  of  nations  and  of  war  would  be  too  often  unavailing  ?  When  forced 
to  retreat,  we  may  begin  to  make  a  road,  under  the  cannon  of  the  enemy ;  we 
may  constitutionally  use  the  pick  axe  and  spade  when  every  hand  is  required 
for  the  bayonet.  And  here  we  have  no  bad  illustration  of  the  character  of 
these  constitutional  doctrines.  Roads  and  canals  are  always  useful,  sometimes 
necessary;  there  are  cases  where  the  General  Government  may  construct 
them ;  but  when  ?  They  are  practicable  in  peace,  but  then  they  are  uncon- 
stitutional ;  they  are  constitutional  only  when  they  are  absolutely  impracti- 
cable.3 

Mr.  Sawyer,  of  North  Carolina,  said  he  understood  some  gentlemen 
to  say  that  this  power  should  be  exercised  without  the  consent  of  the 
states. 

If  such  a  violent  course  as  that  be  attempted,  I  apprehend  that  it  will  be 
met  with  more  substantial  arguments  than  any  used  here ;  and  those  who 
may  come  with  their  axes,  spades  and  shovels  to  tear  the  virgin  bosom  of  our 
country  in  defiance  of  us,  may  find  themselves  forced  to  intrench  themselves 
behind  the  first  bank  they  throw  up — for  the  first  hole  they  dig  may  prove 
the  grave  of  some  or  other  of  us.  Should  my  state  unfurl  her  banners,  I  for 
one  would  plant  myself  under  them,  and  resist  till  the  flesh  were  hacked  from 
my  bones,  before  I  would  submit  to  such  despotism.  It  is  true  as  the  gentle- 
man from  Kentucky  states  it  might  be  prudent  to  obtain  the  consent  of  the 
states ;  indeed  I  think  it  would.* 

1- Annals  of  Congress^  iSth  Cong.,  ist  Sess.,  p.  1200.  3lbid.,  p.  1246. 

^Ibid.,  pp.  1228-30.  Mbid.,  p.  1270. 


62  THE    CUMBERLAND    ROAD 

Mr.  Mercer,  of  Virginia,  in  the  course  of  a  long  speech,  in  replying 
to  a  proposition  that  the  states  would  undertake  such  improvements  as 
were  necessary,  said  states  were  moved  "by  local  and  petty  considera- 
tions." He  cited  many  examples  in  the  various  states,  and  pointed 
out  that  in  the  construction  of  the  only  public  work  of  considerable 
magnitude  by  the  United  States,  one  state  had  long  delayed  operations 
by  withholding  its  consent;  and  two  little  towns  in  Pennsylvania  had 
by  the  exercise  of  pernicious  influence  bent  the  road  from  its  direct 
course  to  suit  their  own  narrow  interests;^  even  then  Maryland  was 
refusing  to  authorize  a  toll  for  the  repair  of  the  road  because  of 
petty  jealousy .="  He  thought  the  doctrine  of  states'  rights  pernicious; 
it  had  almost  paralyzed  the  military  power  in  the  late  war ; 
there  remains  not  now,  however,  a  solitary  state  which  has  not,  in  some  form 
or  other,  exercised  this  power,  nor  one,  I  might  add,  which  has  not  had  cause 
to  repent  it.3 

He  said  that  Congress  had  power 

to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the  terri- 
tory and  other  property  belonging  to  the  United  States.  The  second  part 
clearly  gave  Congress  power  to  appropriate  such  part  of  the  surplus  as  could 
not  then  be  applied  to  the  public  debt.'* 

In  reply  to  the  statement  that  the  Cumberland  Road  was  constructed 
from  public-land  funds  as  a  result  of  a  compact,  he  said  the  act  ceding 
this  territory  stated  that  it  "should  be  considered  as  a  common  fund 
for  the  benefit  of  the  Confederation."  The  compact  with  Ohio  then 
was  not  in  harmony  with  the  Act  of  Cession,  but  with  the  general 
principles  that  we  may  expend  our  funds,  whether  derived  from  the 
public  lands  or  other  sources,  for  general  purposes.^  Mr.  Clay  again 
took  the  floor  and  said  that  internal  improvements  could  be  constructed 
under  the  implied  powers;  that  "a  grant  of  the  end  is  a  grant  of  the 
means. "^  He  thought  the  President,  in  serving  notice  on  Congress 
that  he  was  opposed  to  internal  improvements  as  the  Constitution 
then  stood,  had  reversed  the  legislative  order.  He  should  have  waited 
until  a  bill  was  presented  to  him,  and  not  have  undertaken  to  intimi- 
date Congress. 

At  the  conclusion  of  Mr.  Clay's  speech,  the  resolution  of  the  select 
committee  was  changed,  and  then  agreed  to  by  the  Committee  of  the 
Whole,  as  follows  :  (i)  Congress  had  power  under  the  Constitution  to 
appropriate  money  for  the  construction   of    post-roads,   military,  and 

iSee  p.  22.  Zibid.,  p.  1309.  Sibid.,  p.  1334. 

^2 Annals,  15th  Cong.,  ist  Sess.,  p.  1304.  Albid,,  p.  1315.  (>Ibid.,  p.  1362. 


JURISDICTION  63 

other  roads;  for  canals;  and  for  the  improvement  of  water  courses. 
(2)  The  other  three  resolutions  were  to  the  effect  that  Congress  had 
power  to  construct  (i)  post-roads  and  military  roads;  (2)  roads  and 
canals  necessary  for  commerce  between  the  states ;  (3)  canals  for 
military  purposes.'  There  was  a  provision  in  the  last  three  resolutions 
in  regard  to  construction  that  private  property  should  not  be  taken  for 
public  purposes  without  just  compensation.^  Here  it  is  noticed  that 
the  consent  of  the  states  was  not  required ;  the  power  to  exercise  the 
right  of  eminent  domain  was  asserted  in  the  boldest  terms.  This 
assertion  reached  the  high-water  mark  on  national  jurisdiction  over 
the  Cumberland  Road.  But  the  Committee  of  the  Whole  did  not 
carry  the  House  with  it,  except  on  the  first  resolution  ;  the  other  three 
were  lost  by  narrow  margins.^  The  long  debate  was  at  an  end ;  a 
reply  had  been  made  to  the  President's  message,  and  this  reply  asserted 
that  Congress  had  the  power  to  appropriate  for  internal  improvements. 
No  bill  for  a  general  system  of  internal  improvements  was  presented ; 
but  on  the  same  day  the  vote  was  taken  a  bill  to  make  further  appro- 
priations for  the  construction  of  the  Cumberland  Road  was  passed.'* 

The  action  in  the  Senate  took  a  different  trend.^  The  President's 
message  was  read  December  2,  and  seven  days  later  Senator  Barbour, 
of  Virginia,  introduced  the  following  resolution  for  an  amendment  to 
the  Constitution  : 

Resolved,  That  Congress  shall  have  power  to  pass  laws  appropriating 
money  for  constructing  roads  and  canals,  and  improving  the  navigation  of 
water  courses ; 

Provided,  however,  That  no  road  or  canal  shall  be  constructed  in  any 
state,  nor  the  navigation  of  its  waters  improved,  without  the  consent  of  such 
state;  and 

Provided  also,  That  whenever  Congress  shall  appropriate  money  to  these 
objects  the  amount  thereof  shall  be  distributed  among  the  several  states  in 
the  ratio  of  representation  which  each  state  shall  have  in  the  most  numerous 
branch  of  the  National  Legislature.  But  the  portion  of  any  state  may  be 
applied  to  the  purpose  aforesaid  in  any  other  state.^ 

Mr.  Barbour  said  all  the  senators  would  remember  the  fate  of  the 
''bonus  bill;"  now  that  the  President  had  pronounced  against  the 
constitutionality  of  internal  improvements,  a  resort  to  the  people  for 
an  amendment  was  the  best  solution.  The  resolution  passed  to  a 
second   reading.^     February   18,    1818,    the   resolution    was   reported 

i^««a/j,  15th  Cong.,  ist  Sess.,  p.  1380.  ■2 Ibid.  3 The  vote  was  90  to  75. 

A  Annals,  15th  Cong.,  ist  Sess.,  pp.  1385-89.        5  Ibid.,  p.  1389.        ^Ibid.,  p.  21.         7  Ibid.,  p.  24. 


64  THE    CUMBERLAND    ROAD 

without  amendment,  but  it  was  indefinitely  postponed  without  debate 
by  a  vote  of  22  to  9/ 

The  above  vote  of  22  to  9  on  the  amendment  in  the  Senate,  and  the 
votes  in  the  House  of  90  to  75  on  the  resolution  to  appropriate  money 
for  internal-improvements,  and  of  74  to  56  on  the  Cumberland  Road'' 
revealed  too  even  a  division  to  warrant  presenting  any  general  internal- 
improvement  bill  for  the  President's  veto.  A  House  committee  had 
made  a  strong  report ;  the  broad-constructionists  in  the  House  had 
presented  able  arguments  in  favor  of  the  system ;  and,  although 
defeated  on  the  proposition  to  construct  without  state  consent,  they 
had  carried  a  proposition  affirming  congressional  power  to  appropriate 
for  such  purposes.  The  next  move  was  to  fortify  the  position  already 
taken. 

Calhoun,  the  strong  supporter  of  the  "bonus  bill,"  was  secretary  of 
war  for  Monroe.  The  House,  on  April  4,  1 818,  by  a  vote  of  76  to  57, 
resolved  that  the  secretary  of  war  prepare  and  report  to  the  House  at 
the  next  session  "a  plan  for  the  application  of  such  means  as  are 
within  the  power  of  Congress  for  making  roads  and  canals  with  a  view 
to  military  operations."  The  secretary  of  the  treasury  was  asked  for 
a  statement  of  what  had  been  done  in  the  direction  of  internal-improve- 
ments,^  and  here  the  matter  rested. 

Calhoun's  report  was  laid  before  the  House  January  14,  18 19.  He 
sketched  a  comprehensive  scheme  for  internal-improvements,  taking 
Gallatin's  famous  report  as  a  basis.     He  said  : 

A  judicious  system  of  roads  and  canals  constructed  for  the  convenience 
of  commerce  and  the  transportation  of  the  mail  only,  without  any  reference  to 
military  operations,  is  itself  among  the  most  efficient  means  for  the  more 
complete  defence  of  the  United  States." 

Perhaps  out  of  deference  to  his  chief  he  did  not  discuss  the  constitu- 
tional phases  of  the  subject.  It  was  in  this  report  that  he  urged  the 
use  of  federal  troops  in  constructing  works  of  public  utility .^ 

Congress  was  prevented  from  entering  on  an  internal-improvement 
plan  immediately  because  of  the  hard  times  of  1819-20.  It  returned 
to  the  one  great  work  already  under  way — the  Cumberland  Road. 

In  1 818  the  road  was  finished  to  Wheeling;  the  same  year  Illinois 
was  admitted  to  the  Union  with  a  compact  similar  to  that  of  Ohio ;  two 
years  later  Missouri  came  into  the  Union  on  like  terms.  In  1820  an 
appropriation  of  ^10,000  was  made  to  survey  the  road  westward  through 

^AnnalSy  iSth  Congress,  ist  Sess.,  pp.  211  and  292.  ^ Ibid.,  p.  1664.        3  Ibid.,  pp.  1678,  1679. 

^Miscellaneous  State  Papers,  Vol.11,  p.  534.  ilbid.,  p.  536. 


JURISDICTION  65 

Ohio,  Indiana,  and  Illinois  to  the  Mississippi  River.  It  is  thus  seen 
that  it  took  from  1806  until  1818  for  the  road  to  reach  the  first  state 
whose  lands  were  pledged  for  its  construction.  But  the  road  in  its 
extreme  eastern  part  was  falling  into  decay.  Maryland  did  not  pass 
laws  for  its  protection,  and  would  not  authorize  Congress  to  erect  toll- 
gates  to  collect  funds  to  preserve  this  improvement.  This  subject  had 
already  received  much  attention  in  reports  of  superintendents  and 
treasurers.^  It  was  doubted  whether  Congress  had  the  constitutional 
authority  to  preserve  it  by  erecting  toll-gates  and  policing  the  road ; 
but  a  great  judicial  decision  strengthened  the  faith  of  Congress. 

In  1 819  Marshall  rendered  his  famous  decision  in  the  case  of 
McCullough  vs.  Maryland.  In  this  he  stated  the  doctrine  of  the 
implied  powers  already  hinted  at  in  the  committee's  report  in  18 17,' 
and  the  arguments  of  the  broad-constructionists  when  debating  the 
"bonus  bill,"  the  report  of  the  special  committee  on  Monroe's  mes- 
sage, in  181 6  and  181 7  respectively.'     In  this  decision  he  said: 

Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the  constitution, 
and  all  means  which  are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consistent  with  the  spirit  of  the  Constitution,  are 
constitutional.'* 

On  March  20,  1820,  the  Committee  on  Roads  and  Canals  intro- 
duced a  bill  in  the  House  to  authorize  the  President  to  cause  toll  gates 
to  be  erected  on  the  Cumberland  Road  and  tolls  collected  to  keep  the 
road  in  repair.  There  was  almost  no  debate  on  the  bill.  It  was 
advanced  to  second  reading  by  a  vote  of  iii  to  47,  but  did  not  appear 
again  at  this  session.^  Various  other  attempts  were  made,  both  in  the 
Senate  and  the  House,  to  undertake  a  system  of  repair  for  the  Cum- 
berland Road.^  Finally  in  May,  1822,  "An  Act  for  the  Preservation 
and  Repair  of  the  Cumberland  Road"  passed  the  House  by  a  vote  of 
87  to  68.^     In  the  Senate  only  seven  votes  were  cast  against  it.^ 

Strangely  enough,  there  was  almost  no  debate  on  this  important 
measure.  The  reports  of  the  committee  in  1816,  the  debates  on  the 
"bonus  bill,"  and  debates  on  Monroe's  message  must  furnish  the  con- 
stitutional support  for  the  passage  of  so  important  a  measure.  The 
spirit  of  the  times  in  1822  also  favored  the  preservation  of  this  important 
internal-improvement.  The  defeat  of  the  "bonus  bill"  by  Madison's 
veto  in  181 7  was  the  signal  for  New  York  to  embark  on  the  construc- 

I  See  p.  56.  2  See  p.  58.  3  See  p.  58.  4  Curtis,  IV.,  430. 

5  Annals,  i6th  Cong.,  ist  Sess.,  pp.  1657-59. 

6/dz'd.,  17th  Cong.,  ist  Sess.,  pp.  26,  560,  576,  645,  789,  790. 

1  Ibid.,  p.  1734.  8  Benton,  Thirty  Years  in  the  United  States  Senate,  Vol.  i,p.  22. 


66  THE    CUMBERLAND    ROAD 

tion  of  the  Erie  Canal,  which  promised  great  things  for  the  future.  The 
Cumberland  Road  was  finished  to  the  Ohio  in  1818.  The  Chesapeake 
and  Ohio  Canal  also  held  a  large  place  in  the  public  mind.  As  a  result 
of  this  interest,  the  candidates  for  the  presidential  election  of  1824  were 
already  in  the  field;  and  three  of  them — Adams,  Clay,  and  Calhoun  — 
were  avowed  friends  of  internal-improvements;  the  other  two — Jackson 
and  Crawford  —  were  qualifiedly  friendly.'  All  these  forces,  working 
together,  swept  Congress  on  to  the  assertion  that  it  had  jurisdiction 
over  internal-improvements  within  the  states.  It  was  thought  that  the 
good  feeling  of  this  era  would  deter  Monroe  from  vetoing  this  meas- 
ure, as  he  was  nearing  the  close  of  his  second  term. 

The  provisions  of  the  bill  were  that  the  President  was  authorized  to 
cause  to  be  erected  toll-houses,  gates,  and  turnpikes  on  the  Cumber- 
land Road ;  to  appoint  toll-gatherers  who  should  have  power  to  enforce 
the  collection  of  tolls  which  were  designated  by  Congress ;  but  no  toll 
was  to  be  paid  by  the  United  States  for  the  transportation  of  military 
stores,  or  by  any  person  in  the  military  service  of  the  United  States,  or 
in  the  militia  of  any  of  the  states ;  the  net  returns  from  tolls  should  be 
used  for  the  preservation  of  the  road ;  the  President  might  increase  or 
diminish  tolls  to  what  was  necessary  to  keep  the  road  in  repair ;  per- 
sons were  directed  to  keep  to  the  left  on  passing,  or  pay  a  fine ;  any 
person  attempting  to  avoid  payment  of  toll  was  subject  to  a  fine." 

In  this  section  many  of  the  great  arguments  for  an  internal- 
improvement  system  have  been  set  forth.  In  the  "bonus  bill,"  already 
treated,  we  saw  how  Congress,  departing  slightly  from  the  principle  of 
"compact,"  affirmed  its  constitutional  right  to  appropriate  for  and 
inaugurate  a  system  of  internal-improvements.  This  movement  was ' 
checked  by  Madison's  veto.  Monroe  was  friendly  to  the  system,  but 
wanted  a  constitutional  amendment.  The  congressional  reply  was  the 
long  debate  in  the  House,  and  the  final  assertion  that  Congress  had 
the  right  to  appropriate  for  internal-improvements.  In  the  Senate  an 
effort  was  made  for  an  amendment  to  the  Constitution.  The  need  for 
repairs  on  the  road,  the  advocacy  of  the  doctrine  of  implied  powers, 
and  the  commercial  and  political  fervor  which  had  been  aroused  by  the 
spirit  of  the  times  led  Congress  in  1822  to  pass  the  "gate  bill."  Presi- 
dent Monroe's  disposition  of  the  bill  is  next  in  order. 

3.  Monroe's  veto  of  the  ^' gate  bill.'' — Monroe  sent  in  his  veto  mes- 
sage May  4,  1822.3     His  objections  were  that  Congress  was  not  constitu- 

I  Benton,  Thirty  Years  in  the  United  States  Senate,  Vol.  I,  p.  22. 
'   ^Annals,  17th  Cong,,  pp.  1872-74.         3  Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  142. 


JURISDICTION  67 

tionally  competent  to  exercise  jurisdiction  over  internal-improvements. 
In  a  paper  of  the  same  date  he  presented  his  views  on  the  general  sub-  j 
ject  of  internal-improvements.     This  is  one  of  the  longest,  as  well  as  i 
one  of  the  ablest,  veto  messages  ever  written ;  therefore  it  will  be 
noticed  somewhat  in  detail. 

a)  Division  of  governmental  powers. — When  the  power  of  the  crown 
was  abrogated,  the  powers  of  government  passed  to  the  people  in  each 
colony,  who  organized  as  states  and  then  confederated  for  certain  pur- 
poses ;  but  each  state  retained  its  sovefeignty,  freedom,  and  independ- 
ence. The  confederation  failing,  the  present  Constitution  was  formed 
and  ratified  by  the  people  in  the  several  states ;  but  they  did  not  merge 
themselves  in  one  community  under  one  government.  Two  govern- 
ments were  established  —  one  for  local  purposes,  the  other  for  national ; 
both  had  a  common  origin  —  the  people.  To  the  federal  government 
specific  powers  were  delegated ;  while  all  other  powers  were  retained  by 
the  states  or  the  people. 

3)  Federal  powers  necessary  for  the  adoption  and  execution  of  a  system 
of  internal-improvements. — For  Congress  to  inaugurate  and  carry  out  a 
system  of  internal-improvements  the  following  powers  Monroe  declared 
necessary:  (i)  to  appoint  a  board  of  skilled  engineers  to  lay  out  the 
plans  and  exercise  the  right  of  eminent  domain,  if  owners  refused  to 
sell  property  in  the  right  of  way ;  (2)  to  keep  the  improvement  in  repair 
by  some  such  plan  as  had  just  been  passed  by  Congress  for  the  Cum- 
berland Road ;  (3)  to  pass  laws  for  the  improvement,  and  to  punish 
offenders  wherever  found ;  (4)  to  establish  turnpikes  with  gates,  and 
appoint  persons  to  collect  tolls  and  inflict  penalties  in  case  of  refusal 
to  pay;  (5)  to  coerce  a  state  if  it  objected  to  the  exercise  of  these 
powers  within  its  borders. 

c)  Examination  of  arguments  made  by  supporters  of  internal-improve- 
ments.— Monroe  stated  that  if  the  United  States  possessed  these  powers, 
they  were  either  specifically  granted,  or  were  incidental  and  necessary 
for  carrying  into  execution  some  specific  grant  or  grants.  He  said 
that  the  advocates  of  an  internal-improvement  policy  derived  this 
authority  from  congressional  power:  (i)  to  establish  post-offices  and 
post-roads;  (2)  to  declare  war;  (3)  to  regulate  commerce  among  the 
states ;  (4)  to  pay  the  debts  and  provide  for  the  common  defense  and 
general  welfare  of  the  United  States;  (5)  to  make  all  laws  necessary 
and  proper  for  carrying  into  execution  all  the  powers  vested  by  the 
Constitution  in  the  government  of  the  United  States  or  in  any  depart- 
ment or  officer  thereof;  (6)  to  dispose  of,  and  make  all  needful  rules 


68  THE    CUMBERLAND    ROAD 

and  regulations  respecting,  the  territory  and  other  property  of  the 
United  States. 

He  examined  these  clauses  in  order  : 

(i)  The  right  to  establish  post-offices  and  post-roads  could  not,  in 
the  ordinary  meaning  of  "establish,"'  mean  more  than  the  right 
of  using  existing  roads,  and  not  the  right  to  construct  them  or  exercise 
any  jurisdiction  whatsoever. 

(2)  Using  the  same  rules  of  interpretation,  he  declared  that  power 
over  internal-improvements  could  not  be  incidental  to  the  war  power. 
He  showed  how  carefully  the  Constitution  specified,  in  connection 
with  war,  such  matters  as  raising  money,  equipping  the  army  and  navy, 
calling  out  the  militia,  and  exercising  jurisdiction  over  forts,  arsenals, 
dock  yards,  and  magazines  after  cession  by  the  states  of  such  places  and 
jurisdiction;  and  concluded  that,  since  these  matters,  which  might 
have  been  considered  incidental  to  the  war  power,  were  mentioned  in 
detail,  and  roads  and  canals  were  omitted,  therefore  they  could  not  be 
included  as  incidental  to  the  war  power. 

(3)  The  right  to  regulate  commerce  the  President  traced  histori- 
cally, and  concluded  that  it  gave  only  the  power  to  impose  duties  on 
imports  and  to  prevent  interstate  restrictions  on  commerce. 

(4)  The  general-welfare  clauses  according  to  Monroe  gave  the 
power  "to  tax"  in  order  "to  pay  the  debts  and  provide  for  the  .... 
general  welfare  of  the  United  States."  Here,  he  thought,  were  two 
great  powers.  He  argued  that  the  first  power,  viz.,  "to  tax,"  was 
unlimited  except  by  uniformity ;  and  that  the  general-welfare  clause 
gave  the  power  to  appropriate ;  for  (a)  if  this  clause  did  not  give  the 
right  to  appropriate,  then  the  power  could  not  be  found ;  (d)  this  part 
of  the  grant  was  incidental  to  the  power  "to  tax;"  (<:)  the  place  it 
occupied  in  the  Constitution  was  most  fitting  for  this  purpose. 

He  examined  the  various  acts  of  Congress  appropriating  money  for 
roads,  and  found  them  to  be  justified  by  this  clause ;  but  he  argued 
that  appropriations  could  be  made  only  for  large  national  purposes. 
He  said  : 

My  idea  is  that  Congress  have  an  unlimited  power  to  raise  money,  and 
that  in  its  appropriation  they  have  a  discretionary  power,  restricted  only  by 
their  duty  to  appropriate  it  to  purposes  of  common  defence  and  of  general, 
not  local,  national,  not  state  benefit. 

In  his  opinion,  the  power  to  appropriate  did  not  carry  with  it  the  power 
to  construct,  or  to  exercise  the  right  of  eminent  domain  or  any  other 
jurisdiction  whatever. 

I  For  Clay's  reasoning  on  "establish"  see  Annals,  isth  Cong.,  ist  Sess.,  p.  1176. 


JURISDICTION  69 

(5)  The  power  to  make  all  laws  necessary,  etc.,  he  had  always  con- 
sidered as  having  been  granted  on  the  principle  of  greater  caution  to 
secure  the  complete  execution  of  all  powers  which  had  been  vested  in 
the  general  government.  It  contained  no  specific  power,  hence  it  could 
not  include  the  power  to  construct  internal-improvements,  for  this 
power  was  not  granted. 

(6)  As  to  the  power  to  make  all  needful  rules  and  regulations  con- 
cerning the  territory  and  other  property  of  the  United  States,  he 
showed  that  this  had  reference  to  the  territory  and  property  belonging 
to  the  United  States  as  cessions  from  the  states  at  the  formation  of  the 
Constitution,  and  had  no  bearing  on  the  question  of  internal-improve- 
ments. He  concluded  from  the  foregoing  examination  that  the  right 
could  not  be  derived  from  one  or  all  of  the  powers  claimed  by  the 
advocates  of  a  complete  system  of  internal-improvements  for  the  United 
States,  as  it  would  include  the  power  of  eminent  domain,  the  right  to 
impose  tolls  and  inflict  penalties.  In  a  word,  Congress  had  the  power 
to  appropriate  money,  but  not  the  power  to  exercise  jurisdiction. 

d)  He  next  took  up  the  benefits  of  a  general  system  of  internal- 
improvements^  and  strongly  recommended  the  system,  if  it  could  be 
done  by  means  of  a  constitutional  amendment.*  He  pointed  out  that 
the  Cumberland  Road  was  falling  into  decay;  it  needed  policing;  but 
the  power  was  lacking  in  the  United  States.  Would  the  states  receive 
so  much  of  the  road  as  lay  within  their  borders  and  keep  it  in  repair  ? 
He  hardly  thought  so,  as  the  advantages  of  the  road  were  almost 
exclusively  national.  The  most  expensive  parts  of  the  road  lay  within 
Pennsylvania  and  Virginia,  very  near  the  confines  of  the  states,  and  not 
essentially  connected  with  the  commerce  of  either.  An  amendment 
was  the  only  means  of  transferring  the  power  of  jurisdiction,  as  it  could 
not  be  done  through  the  implied  powers,  nor  could  the  states  transfer 
it  by  mere  consent. 

In  this  veto  message  Monroe  took  a  position  different  from  that  of 
Madison  in  1817  and  his  own  position  in  181 7-18.''  Madison  was 
opposed  to  internal-improvements  without  a  constitutional  amendment, 
although  he  signed  Cumberland  Road  bills  because  of  the  Ohio  com- 
pact. In  181 7-18  Monroe  was  opposed  to  internal-improvements 
without  an  amendment;  in  1822  he  was  opposed  to  the  exercising  of 
administrative  powers  by  the  United  States  in  either  construction  or 
jurisdiction,  but  he  did  favor  the  appropriation  by  the  United  States  for 
such  improvements  under  the  head  of  the  "general  welfare."    Here  he 

I  Messages  and  Papers  of  the  Presidents,  Vol.  II,  pp.  144-83.  2  See  p.  54. 


70  THE    CUMBERLAND    ROAD 

seemed  in  a  measure  to  obviate  the  difficulty  raised  by  Madison.  This 
brought  the  President  into  harmony  with  the  vote  of  Congress  in  1818, 
and  with  the  people  generally,  on  the  power  to  tax  and  appropriate  for 
internal-improvements.     This  was  Monroe's  only  veto. 

What  would  Congress  do  with  the  veto  ?  Could  it  muster  the  nec- 
essary two-thirds  vote  in  both  houses  to  overcome  it  ?  On  the  original 
passage  of  the  bill  the  vote  in  the  House  was  87  to  68';  on  the  propo- 
sition to  pass  it  over  the  veto,  it  was  68  to  72.''     The  bill  was  dead. 

4.  Effects  of  Monroe's  veto. — In  his  veto  message  the  President  indi- 
cated a  basis  on  which  he  and  Congress  could  work  together;  viz.,  the 
federal  government  had  power  to  appropriate  money  for  internal-improve- 
ments of  a  National  character.  If  Congress  could  not  overcome  the 
veto  in  favor  of  jurisdiction  over  internal-improvements,  it  must  con- 
tent itself  with  the  exercise  of  the  less  important  power  for  the  present; 
hence  the  next  year  (1823)  two  important  measures  were  passed  in  con- 
formity with  the  President's  suggestion:  (i)  the  first  river  and  harbor 
bill  ;3  (2)  a  bill  appropriating  directly  for  the  repair  of  the  Cumberland 
Road. 

The  President,  in  his  annual  message,  December,  3,  1822,  discussing 
the  Cumberland  Road  and  his  veto  message,  said : 

Should  Congress,  however,  deem  it  improper  to  recommend  such  an 
amendment,  they  have,  according  to  my  judgment,  the  right  to  keep  the  road 
in  repair  by  providing  for  the  superintendence  of  it  and  appropriating  the 
money  necessary  for  repairs.  Surely  if  they  had  the  right  to  appropriate 
money  to  make  the  Road,  they  have  the  right  to  appropriate  it  to  preserve 
the  Road  from  ruin.'* 

January  7,  1823,  a  bill  making  an  appropriation  for  repairs  reached 
third  reading  in  the  Senate.  Mr.  Macon,  \i  North  Carolina,  opposed 
it  on  constitutional  grounds.  Talbot,  of  Kentucky,  Smith,  of  Mary- 
land, and  Van  Buren,  of  New  York,  favored  it  on  the  ground  that  the 
large  appropriations  already  made  would  be  worse  than  wasted  if  the 
road  were  not  repaired.  The  bill  appropriating  $25,000  passed  by  a 
vote  of  26  to  9.5  In  the  House  a  sharp  contest  was  waged.  A  resolu- 
tion from  the  Maryland  legislature  praying  for  the  preservation  of  the 
road  was  read;^  also  a  letter  from  the  postmaster-general,  which  said 

I  For  an  analysis  of  the  vote  see  Burgess,  Middle  Period,  pp.  ii8,  iig. 
^Annals,   17th  Cong,,  ist  Sess.,  pp.  1874,  1875. 

3  Lalor,  Cyclopedia  of  PoliticalScience,  Vol.  II,  p.  569.  This  policy  has  been  pursued  continu- 
ously to  the  present  time. 

\ Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  191. 
\      S  Annals,  17th  Cong.,  ist  Sess.,  pp.  84,  92.  (>Ibid.,  p.  461. 


JURISDICTION  71 

that  he  had  inspected  the  road  and  found  it  in  a  ruinous  state,  which 
greatly  retarded  the  transportation  of  the  mails.' 

Mr.  Buchanan,  of  Pennsylvania,  submitted  an  amendment  that 
after  December  i,  1823,  any  right  which  the  United  States  might  have 
to  so  much  of  the  road  as  lay  in  Maryland,  Pennsylvania,  and  Virginia 
should  be  ceded  to  the  states;  provided  that  the  state  legislatures 
should  within  six  months  thereafter  accept  the  same  and  keep  it  in 
good  repair  within  their  respective  limits,  and  should  publish  annually 
an  account  of  the  tolls  received  and  expended."  Mr.  Ingham,  of 
Pennsylvania,  moved  to  amend  the  amendment  that  in  case  any  of  the 
said  states  should  accept  the  road  and  neglect  to  comply  with  the  con- 
ditions, the  United  States,  on  proof  being  made,  might  resume  any 
right  to  the  road  which  it  then  possessed.^  These  amendments  were 
lost  by  a  vote  of  65  to  66.  Some  wanted  the  "2  per  cent,  fund" 
pledged  for  the  appropriation,  to  distinguish  it  from  other  internal- 
improvements  ;  the  Indiana  and  Illinois  representatives  protested 
against  the  legality  of  pledging  the  fund  arising  from  the  sales  of  lands 
in  their  states,  for  the  repair  of  the  road  east  of  the  Ohio  River  and 
also  against  the  act  of  1819  which  pledged  these  funds  for  construc- 
tion.'' The  bill  was  passed  by  a  vote  of  89  to  66 ;  and  the  appropria- 
tion was  made  from  general  funds. 

These  two  acts,  the  river  and  harbor  bill,  and  the  act  for  the 
preservation  of  the  road  brought  Congress  and  the  President  into 
harmonious  relations  on  the  question  of  appropriations;  the  other 
part  of  the  presidential  program  was  a  constitutional  amendment  which 
had  been  recommended  also  by  Jefferson  and  Madison. 

February  11,  1823,  Senator  Smith  introduced  a  resolution  for  the 
following  amendment  to  the  constitution  : 

That  congress  shall  have  power  to  adopt  and  execute  a  system  of  internal 
improvements  confined  to  great  National  purposes. 

Two  weeks  later  the  resolution  was  tabled.^  At  the  first  session  of  the 
Eighteenth  Congress,  Senator  Van  Buren,  of  New  York,  introduced  a 
resolution  for  the  following  amendment : 

Congress  shall  have  the  power  to  make  roads  and  canals ;  but  all  money 
appropriated  for  this  purpose  shall  be  apportioned  among  the  several  states 
according  to  the  last  enumeration  of  their  respective  numbers,  and  applied 
to  the  making  and  repairing  of  roads  and  canals  within  the  several  states  as 
Congress  may  direct ;  but  any  state  may  consent  to  the  appropriation  by  Con- 

^  Annals,  17th  Cong.,  2d  Sess.,  p.  508.    ^ Ibid,,  p.  1072. 

"2  Ibid.,  pp.  1063,  1064.  \Ibid.,  p.  1075.         Sibid.,  pp.  200,  290, 


72  THE    CUMBERLAND    ROAD 

gress  of  its  quota  of  such  appropriation  in  the  making  or  repairing  of  roads  or 
canals,  without  its  own  limits ;  no  such  road  or  canal  shall,  however,  be  made 
within  any  state  without  the  consent  of  the  legislature  thereof,  and  all  such 
money  shall  be  so  expended  under  their  direction. 

This  resolution  he  supported  with  a  speech  in  which  he  declared  his 
friendship  for  internal-improvements,  but  wished  the  power  to  be 
exercised  in  a  constitutional  way.  The  resolution  was  tabled  without 
debate.' 

Monroe  in  his  annual  message,  December  2,  1823,  referring  to  the 
Cumberland  Road,  said  that,  inasmuch  as  annual  appropriations  for 
repairs  would  be  necessary,  and  the  proposition  for  an  amendment  had 
failed,  some  different  plan  must  be  sought;  and  closed  by  submitting 
to  Congress  : 

whether  it  may  not  be  expedient  to  authorize  the  Executive  to  enter  into  an 
arrangement  with  the  several  states  through  which  the  Road  passes,  to 
establish  tolls,  each  within  its  limits,  for  the  purpose  of  defraying  the  expense 
of  future  repairs  and  of  providing  also  by  suitable  penalties  for  its  protection 
against  future  injuries.'' 

This  part  of  the  message  was  referred  to  the  Committee  on  Roads 
and  Canals  in  the  House.  It  was  not  until  May  7,  1824,  that  the  com- 
mittee reported  through  its  chairman,  Mr.  Hemphill,  of  Pennsylvania. 

It  was  the  opinion  of  the  committee  that  Congress  had  complete 
power  to  establish  tolls  on  the  Cumberland  Road,  and  to  provide 
suitable  penalties  for  its  protection ;  also  that  the  principle  contained 
in  the  bill  of  1822  assumed  no  state  jurisdiction,  but  was  simply  the 
exercise  of  a  law  of  the  United  States  constitutionally  enacted.  The 
infringement  of  a  United  States  law  must,  with  few  exceptions,  be 
committed  within  the  territory  of  a  state,  but  he  who  committed  the 
offence  must  be  punished  by  the  United  States ;  and  this  was  not  an 
infringement  of  state  jurisdiction.  The  United  States,  in  the  opinion 
of  the  committee,  could  not  acquire  exclusive  jurisdiction  except  with 
the  consent  of  the  legislature  of  a  state,  and  then  only  for  the  erection 
of  forts,  arsenals,  etc.;  the  states  could  in  no  other  instances  give  jurisdic- 
tion to  the  United  States  except  by  way  of  an  amendment.  Of  the 
wisdom  of  authorizing  the  President  to  enter  into  an  arrangement  with 
the  states  through  which  the  road  passed,  for  the  establishment  of  tolls, 
the  committee  entertained  grave  doubts.  The  mixing  of  authorities  over 
the  road  would  in  all  probability  lead  to  unpleasant  results  :  one  state 

^Annals,  i8th  Cong.,  ist  Sess.,  pp.  134,  151. 

'Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  217. 


JURISDICTION  73 

might  erect  toll-gates  and  another  refuse ;  even  if  all  were  to  comply, 
the  road  would  be  unequally  repaired ;  the  western  states,  too,  might 
complain  of  the  state  of  repair,  which  would  produce  irritation  among 
sister  states.  Would  a  state  undertake  the  management  of  a  road  not 
made  mainly  for  its  own  accommodation  ?  If  a  state  should  enter 
into  such  an  arrangement,  annual  reports  must  be  made  —  one  to  the 
state  legislature,  and  another  to  the  federal  government;  then,  if  a 
state  should  not  comply  with  the  arrangement,  the  right  of  the  road 
would  revert  to  the  United  States.  Some  might  comply  and  others 
fail;  hence  the  road  again  would  belong  to  different  jurisdictions.  It 
appeared  to  the  committee  that  the  road  should  belong  exclusively  to 
one  jurisdiction,  and  that  the  expense  of  repair  should  be  raised  by  a 
toll  on  those  who  used  the  road ;  that  it  was  inexpedient  to  enter  into 
any  arrangement  with  any  of  the  states  on  the  subject  of  the  Cumber- 
land Road.' 

There  could  be  no  agreement,  then,  between  the  President  and 
Congress  on  the  question  of  tolls  and  jurisdiction  ;  so  an  effort  must  be 
made  at  conciliation  on  some  other  basis.  Congress  must  present  bills 
to  the  President  which  would  meet  with  his  approval,  as  the  veto  could 
not  be  overcome.  In  the  Cumberland  Road  veto  the  President  had 
advocated  appropriating  money  for  internal-improvements  of  national 
importance.  He  had  already  approved  a  river  and  harbor  bill,  and  a 
bill  for  the  repair  of  the  Cumberland  Road,  and  these  acts  were  not 
based  on  state  compacts,  nor  was  the  expenditure  reimbursable  from 
the  sale  of  public  lands.  The  important  question  was  :  What  internal- 
improvements  were  of  national  importance  ?  Congress  itself  could 
not  decide  because  of  the  persistence  of  local  importunity;  hence  an 
act  was  passed  and  approved  April  30,  1824,  which  empowered  the 
President  to  cause  surveys,  plans,  and  estimates  to  be  made  of  such 
roads  and  canals  as  he  might  deem  of  national  importance  from  a 
military,  postal,  or  commercial  point  of  view.  He  might  employ  a 
board  of  skilled  engineers  from  the  corps  of  engineers,  and  two  or 
more  civil  engineers.^  This  board  of  engineers  became  a  fixture  in 
the  American  improvement  policy  of  the  federal  government.^  The 
other  steps  taken  by  Congress,  in  harmony  with  the  President's  views  of 
national  importance,  were  the  extension  and  construction  of  the  Cumber- 

^ Reports  of  Committees,  Yo\.  II,  No.  ii8;  i8th  Cong.,  ist  Sess. ;  also  Annals  i8th  Cong.,  ist 
Sess.,  pp.  2556-58. 

"2  Annals,  i8tli  Cong.,  ist  Sess.,  p.  3217. 

3The  debate  on  this  bill  is  most  instructive;  see  ibid.,  pp.  830,  1163,  1233,  1264,  1296,  1324,  1344, 
1371,  1399,  1430,  1462. 


74  THE  CUMBERLAND  ROAD 

land  Road  west  of  the  Ohio  River.  This  act  received  his  signature  on 
March  3,  1825,  the  last  day  of  his  official  life. 

Some  important  considerations  on  the  extension  of  the  Cumberland 
Road  reveal  the  national  feeling  and  throw  light  on  subsequent  ques- 
tions touching  internal  improvements ;  hence  a  short  statement  is  here 
introduced. 

In  1820  a  bill  was  passed  appropriating  $10,000  for  laying  out  the 
road  from  Wheeling  to  the  Mississippi  River.  Some  efforts  were 
made  to  begin  constructions,  but  so  long  as  the  struggle  was  centering 
around  the  constitutionality  of  tolls  and  federal  jurisdiction  over  the 
road  east  of  the  Ohio,  nothing  was  done  in  spite  of  the  three  additional 
"compacts"  pledging  the  "2  per  cent,  fund."  January  12,  1825,  by 
a  vote  of  57  to  55,  the  House  took  up  for  discussion  the  question  of 
extension.  Beecher,  of  Ohio,  said  that  the  road  should  not  be  viewed 
as  a  western  subject  either  at  its  inception  or  then ;  that  the  people  of 
Ohio,  moved  largely  by  national  impulses,  had  made  great  sacrifices 
for  the  road ;  that  the  road  was  asked,  not  as  a  gift  to  the  West,  but  on 
principles  of  national  policy,  as  it  would  bind  the  Atlantic  seaboard 
and  the  Mississippi  valley  together;  that  a  narrow  spirit  influenced 
Congress  to  appropriate  the  $15,000,000  expended  by  the  government 
east  of  the  Alleghanies  on  forts,  lighthouses,  the  navy,  and  the  whole 
civil  list  with  minor  exceptions.  Cook,  of  Illinois,  and  Jennings,  of 
Indiana,^  complained  about  pledging  the  "2  per  cent,  fund"  from 
their  states  for  a  road  that  was  not  even  located  in  their  states  and, 
judging  by  past  progress,  would  not  be  constructed  for  another  genera- 
tion. They  would  have  the  road  located,  opened,  and  bridged  from 
the  Ohio  to  the  Mississippi.  In  view  of  this  complaint,  Beecher  gener- 
ously offered  to  appropriate  from  the  federal  treasury  and  not  pledge 
the  "2  per  cent,  fund."  Rankin,  of  Mississippi,  said  that  the  original 
compact  with  Ohio  was  to  bind  the  East  and  the  West  together,  and 
this,  in  his  opinion,  had  been  done;  that  there  was  no  necessity  for 
binding  the  three  great  western  states  together,  as  their  relative  situa- 
tion was  sufficient.  Touching  the  question  of  "advances"'  already 
made,  he  said  that  the  "2  per  cent,  fund"  amounted,  in  1823,  to 
$249,000,  while  the  cost  of  the  road  had  been  $1,600,000.  McLean, 
of  Ohio,  ignoring  the  great  discrepancy,  said  that  unless  the  citizens 
of  the  country  were  united  in  interest  there  was  no  "ligament  strong 
enough  to  bind  them  together;  but  the  road  would  unite  their 
interests."^ 

^Congressional Debates,  i8th  Cong.,  2d  Sess.,  pp.  137,  184-85. 
2/^/rf.,  pp.  iqo-gS.  3/3zrf.,  p.  20. 


JURISDICTION  75 

The  debate  became  general.  Buchanan  said  the  "2  per  cent, 
fund"  could  never  reimburse  what  had  already  been  expended  ;  so  flimsy 
an  excuse  should  not  be  offered  by  intelligent  men ;  if  the  road  was  to 
be  extended,  let  it  be  done  as  a  national  improvement.'  Mr.  Wood,  of 
New  York,  was  opposed  to  the  extension  of  the  road,  as  the  map 
showed  that  it  would  run  parallel  to  the  Ohio  River  and  at  no  great 
distance  from  it ;  and  the  Ohio  and  Mississippi  were  better  for  trans- 
portation purposes  than  any  road." 

Other  great  national  leaders  also  participated  in  the  debate.  Mr. 
McDuffie,  of  South  Carolina,  said  that  the  **2  per  cent,  fund"  was 
more  than  exhausted ;  that  Ohio  and  its  part  of  the  Union  had  already 
received  more  than  their  share  of  money  for  internal-improvements. 
He  favored  the  payment  of  the  public  debt.^  In  a  second  speech  he 
urged  delay,  and  stated  that  other  sections  of  the  country  had  been 
slighted  that  the  Cumberland  Road  might  be  built.  He  charged  that 
the  War  of  181 2  had  really  been  fought  in  the  interests  of  the  West ; 
that  there  was  discrimination  against  certain  sections  in  the  raising  and 
expenditure  of  the  public  moneys;  viz.,  a  considerable  part  of  the 
public  revenue  was  raised  from  goods  imported  into  Charleston,  and 
not  a  tenth  part  raised  was  expended  there,  but  went  to  such  improve- 
ments as  the  Cumberland  Road  in  the  North.'*  This,  of  course,  drew 
Webster's  fire.  He  said  he  was  in  favor  of  internal-improvements,  and 
wished  to  bring  to  the  subject  the  right  kind  of  feeling  —  one  truly 
national.  He  said  that  benefits  could  not  be  prorated ;  there  could  be 
no  just  balancing  of  one  local  interest  against  another,  as  the  strictly 
numerical  view  was  bad.  He  stated  that  Congress  had  acted  time  and 
again  with  the  idea  of  completing  the  road,  and  that  this  should  now 
be  done  as  a  great  national  undertaking.  He  then  defined  a  national 
work  as  follows:  "Works  surely  may  be  denominated  National  which 
are  of  extensive  importance,  although  the  benefit  may  not  be  strictly 
universal."  He  said  the  public  domain  was  not  to  be  considered  a 
great  source  of  public  revenue.  The  true  object  was  to  have  the  lands 
settled. 

Mr.  McDuffie  in  reply  said  he  was  not  in  favor  of  offering  a  bonus 
for  the  depopulation  of  the  East  by  making  lands  in  the  West  cheap. 

Look,  sir,  at  the  present  aspect  of  the  Southern  states.  In  no  part  of 
Europe  will  you  see  the  same  indications  of  decay  —  deserted  villages, 
houses  falling  into  ruin,  impoverished  lands  thrown  out  of  cultivation.  Sir,  I 
believe  that  if  the  public  lands  had  never  been  sold,  the  aggregate  amount  of 

1  Congressional  Debates,  i8th  Cong.,  2d  Sess.,  p.  207.  ^Ibid.,  p.  212. 

2  Ibid.,  p.  208.  4  Ibid.,  p.  247. 


76  THE  CUMBERLAND  ROAD 

wealth  would  have  been  greater  at  this  moment.  Our  population,  if  concen- 
trated in  the  old  states,  and  not  ground  down  by  tariffs,  would  have  been  more 
prosperous  and  more  wealthy. 

Cheap  lands  and  internal-improvements  meant  the  settling  of  the 
West  and  the  depopulation  of  the  East.' 

Mr.  Stewart,  of  Pennsylvania,  said  the  War  of  1812  was  fought  for 
the  commercial  interests  of  the  East  and  over  questions  of  impress- 
ment of  sailors,  not  over  the  protection  of  the  western  frontier.  He 
was  in  favor  of  the  improvement.'' 

The  proposition  to  make  the  appropriation  $150,000  was  carried 
by  a  vote  of  93  to  82.  But  the  Illinois  and  Indiana  representatives 
carried  their  point  by  having  $10,000  of  this  set  aside  for  location  to 
the  Mississippi.  The  act  fixed  the  capitals  of  Ohio,  Indiana,  and 
Illinois  as  points  on  the  road.^ 

The  only  point  of  interest  in  the  consideration  in  the  Senate  was 
the  effort  to  carry  a  motion  that  the  funds  of  Illinois  and  Missouri 
should  not  be  pledged  until  their  state  legislatures  gave  their  con- 
sent.    This  failed,  and  the  bill  passed  by  a  vote  of  28  to  16. 

This  debate  reveals  the  strength  of  the  sentiment  in  favor  of 
national  internal-improvement,  but  the  tendency  in  that  direction  was 
not  strong  enough  to  prevent  a  resort  to  the  original  idea  of  "com- 
pact" between  the  United  States  and  the  states  immediately  concerned. 
It  reveals  an  attitude  of  hostility  between  the  East  and  the  West;  also 
a  disposition  to  prorate  or  the  idea  of  setting  one  locality  against 
another.  It  also  shows  the  future  alignment  to  be  taken  by  Webster 
and  McDuffie  on  the  question  of  nationalism  against  state  rights. 

During  the  two  administrations  of  Monroe  a  great  constitutional  battle 
had  been  waged.  Using  the  doctrine  of  the  implied  powers,  Congress 
asserted  its  authority  (i)  to  enter  upon  an  extensive  system  of  internal- 
improvements  ;  (2)  to  exercise  jurisdiction  over  the  Cumberland  Road. 
Monroe's  policy,  as  outlined  in  his  veto  message  of  May  4,  1822, 
denied  both  propositions.  He  suggested  (i)  an  amendment  to  the 
Constitution  which  should  grant  power  over  internal-improvements  ; 
(2)  the  appropriation  by  Congress  for  internal-improvements  of  a 
national  character  under  authority  of  the  "general  welfare  "clause  of 
the  Constitution. 

I  Congressional  Debates,  i8th  Cong.,  2d  Sess.,  pp.  253,  254. 

^Ibid.,  p.  255.  Zibid.,  p.  671  (1824-25). 


JURISDICTION  T*] 

As  a  direct  result  of  Monroe's  policy,  Congress  (i)  passed  the  first  < 
river  and  harbor  bill ;  (2)  appropriated  directly  for  the  repair  of  the  \ 
Cumberland  Road ;  (3)  created  the  Board  of  Engineers  to  determine  on 
internal-improvements  of  a  national  character;  (4)  and  extended  the 
Cumberland  Road  west  of  the  Ohio  River.  Congress  did  not  provide 
for  an  internal-improvement  amendment,  and  was  not  ready  to  yield  on 
the  question  of  jurisdiction  over  the  road  without  another  struggle 
when  Adams  came  to  the  presidency. 


VII.     SURRENDER  OF  THE  CUMBERLAND  ROAD. 

T.  Jurisdiction  again. — The  retirement  of  Monroe  ushered  in  John 
Quincy  Adams,  a  President  elected  largely  on  an  internal-improve- 
ment platform.  The  people  were  not  kept  long  in  suspense  in  regard 
to  the  President's  position.  Like  Monroe,  he  touched  the  subject  in 
his  first  inaugural.  He  said  that  internal-improvements  would  be  a 
blessing  to  unborn  millions  of  our  population,  as  the  roads  and 
aqueducts  of  Rome  had  outlived  her  conquests  and  despotism.  Refer- 
ring to  the  Cumberland  Road,  he  said:  "To  how  many  thousands  has 
it  been  a  benefit  ?  To  what  individual  has  it  ever  proved  an  injury  ?" 
He  hoped  that  every  "speculative  scruple  would  prove  a  private 
blessing."* 

Only  a  few  days  after  the  President  so  warmly  advocated  internal- 
improvements,  Senator  VanBuren,  of  New  York,  introduced  the  follow- 
ing in  the  Senate  : 

Resolved,  That  Congress  does  not  possess  the  power  to  make  roads  and 
canals  within  the  respective  states. 

Resolved,  That  a  select  committee  be  appointed  with  instructions  to  prepare 
and  report  a  joint  resolution  for  an  amendment  of  the  constitution  prescrib- 
ing and  defining  the  power  Congress  shall  have  over  the  subject  of  internal- 
improvements,  and  subjecting  the  same  to  such  restrictions  as  shall  effectu- 
ally protect  the  sovereignty  of  the  respective  states,  and  secure  to  them  a  just 
distribution  of  the  benefits  resulting  from  all  appropriations  made  for  that 
purpose. 

These  resolutions  he  supported  with  a  speech ;  but  the  Senate  did 
not  take  favorable  action." 

The  question  of  greatest  interest  touching  internal -improvements 
during  Adams's  administration  was  that  of  jurisdiction  over  the  Cum- 
berland Road.  It  arose  on  a  bill  for  the  preservation  and  repair  of 
the  road  east  of  the  Ohio. 

March  27,  1826,  Mr.  Stewart,  of  Pennsylvania,  chairman  of  the  House 
Committee  on  Roads  and  Canals,  reported  that  the  committee  had 
examined  the  road  and  found  it  in  a  "state  of  rapid  dilapidation." 
The  committee  reported  a  bill  similar  to  the  one  passed  in  1822  and 
vetoed  by  President  Monroe.  This  brought  up  the  vexed  question  of 
jurisdiction  once  more.    The  committee  said  that  the  power  to  construct 

I  Messages  and  Papers  of  the  Presidents.,  Vol.  II,  pp.  2981-89. 
^Congressional  Debates, 'Wo\,  II,  Part  I,  p.  20  (1825-26). 

78 


SURRENDER    OF    THE    ROAD  79 

the  road,  which  had  been  asserted  and  exercised,  carried  with  it  as  a 
necessary  incident  the  right  to  preserve  it.  The  right  to  create  and  the 
right  Xo  preserve  must  stand  or  fall  together.'  The  matter  was  allowed 
to  rest  with  the  report  of  the  committee. 

A  proposition  for  the  United  States  to  exercise  jurisdiction  over 
the  road  was  always  followed  by  a  counter-proposition  to  cede  it.  In 
the  Senate,  January  23,  1828,  Senator  Macon,  of  North  Carolina,  intro- 
duced a  resolution  instructing  the  committee  of  the  judiciary  to  inquire 
into  the  expediency  of  relinquishing  to  the  states  through  which  the 
Cumberland  Road  passed  to  the  Ohio  River  whatever  claims,  if  any, 
the  United  States  had  to  the  same.  This  was  agreed  to,  but  the  com- 
mittee did  not  report.^ 

The  road  was  fast  going  to  destruction,  in  spite  of  the  appropria- 
tions Congress  was  making  for  repairs  east  of  the  Ohio.  Profiting  by 
the  experience  of  the  states  east  of  the  Ohio  River,  the  state  legislature 
of  Ohio  on  February  11,  1828,  passed  a  law  for  the  protection  of  the 
road  against  injuries ;  and  providing  for  the  punishment  of  destructive 
acts  within  her  borders.  Pennsylvania  did  likewise.  Appropriations 
for  repairs  had  been  made  as  follows:  1823,^25,000;  1827,  $30,000. 
This  sum  was  wholly  inadequate,  as  the  states  had  stood  jealously  by 
their  supposed  rights  guarding  the  right  of  eminent  domain,  and  not 
passing  laws  for  the  protection  of  the  road  against  injury.  But  to  see 
this  improvement  crumble  as  soon  as  it  was  finished  gave  some  of  them 
pause.  This  is  illustrated  in  the  acts  of  Ohio.^  Moreover,  Pennsyl- 
vania went  farther  and  passed  the  following  resolution  February  25, 
1828: 

That  the  government  of  the  United  States  be  and  the  same  is  hereby 
authorized  to  erect  toll-gates  on  that  portion  of  the  Cumberland  Road  which 
is  within  the  limits  of  this  commonwealth,  enforce  the  collection  of  tolls,  and 
generally  to  do  and  perform  any  and  every  other  act  and  thing  which  may  be 
deemed  necessary  to  insure  the  permanent  repair  and  preservation  of  said 
road.  Provided,  that  no  higher  tolls  be  imposed  or  exacted  than  may  be  suf- 
ficient for  the  purpose  aforesaid,  and  that  the  amount  of  such  tolls  shall 
be  applied  exclusively  to  the  repairs  of  the  said  road  within  the  state  of 
Pennsylvania.^ 

President  Adams  in  transmitting  this  resolution  to  Congress  recom- 
mended "an  adequate  provision  for  the  permanent  preservation  and 
repair  of  that  great  National  Work." 

I  Congressional  Debates^  Vol.  IV,  Part  I,  pp.  125-27  (1827-28). 

■2  Reports  of  Committees^  Vol.  Ill,  No.  143,  19th  Cong.,  ist  Sess.  (March  27,  1827). 

3  Senate  Documents,  Vol.  XII,  No.  120  (February  25,  1828).         \  State  Papers,  Vol.  IV,  p.  152. 


80  THE    CUMBERLAND    ROAD 

On  May  i,  1828,  Senator  Benton,  of  Missouri,  introduced  the  fol- 
lowing resolution : 

That  no  right  of  soil  or  of  jurisdiction  over  the  ground  on  which  the 
Cumberland  Road  runs,  was  acquired  by  the  United  States  by  the  acts  of 
Maryland,  Pennsylvania,  and  Virginia  granting  their  consent  to  the  making 
of  said  road.  That  it  is  not  expedient  for  the  United  States  to  exercise  a 
permanent  superintending  care  over  the  repairs  and  preservation  of  the  Roads 
made  by  it  within  the  limits  of  the  different  states. 

That  the  repair  and  preservation  of  the  Cumberland  Road,  and  of  all 
other  roads  made  or  to  be  made  under  the  authority  of  the  United  States  be 
left  to  the  states  through  which  the  same  pass.^ 

Smith,  of  Maryland,  objected  that  these  resolutions  were  vague  and 
abstract,  and  would  settle  nothing.  As  it  was  late  in  the  session,  it 
would  be  better  to  proceed  to  a  consideration  of  the  bill  to  authorize 
toll-gates.  Benton  replied  that  the  resolutions  were  not  abstract,  and 
they  would  settle  a  vexed  question  which  had  been  before  Congress  for 
seven  years,  viz.,  fixing  the  authority  which  was  to  be  charged  with  the 
care,  repair,  and  preservation  of  this  road.  In  regard  to  the  bill  for 
gates  in  1822,  Benton  said  that  no  constitutional  barriers,  objections 
of  inconvenience,  or  inexpediency  rose  to  impede  or  arrest  its  progress. 
The  bill  had  floated  through  Congress  on  the  swelling  tide  of  an  over- 
whelming majority,  but  was  rightly  vetoed  by  Monroe  on  constitutional 
grounds.  The  provisions  of  this  "gate  bill"  in  his  opinion  were  a  limi- 
tation of  state  sovereignty.  He  said:  (i)  The  right  of  jurisdiction 
over  the  soil  could  be  acquired  by  the  United  States  only  through  ces- 
sion from  the  states ;  and  then,  only  over  forts,  magazines,  arsenals, 
dockyards,  and  other  needful  buildings,  and  for  a  seat  of  government 
for  the  Union.  (2)  The  act  of  Pennsylvania,  Virginia,  and  Maryland 
in  granting  their  consent  to  the  construction  of  the  Cumberland  Road 
did  not,  in  point  of  fact,  and  could  not,  in  point  of  constitutional 
power,  confer  upon  the  government  of  the  United  States  any  right  of 
soil  or  of  jurisdiction.  (3)  The  road  was  made  upon  contract  by  the 
United  States  and  for  hire ;  therefore  it  was  no  more  the  property  of 
the  United  States  than  a  pair  of  boots  made  to  order,  paid  for,  and 
delivered  is  the  property  of  the  maker ;  title  to  another's  property  could 
not  be  acquired  by  making  an  improvement  upon  it ;  if  such  a  conten- 
tion were  granted,  the  states  would  be  reduced  to  the  same  political 
condition  as  the  District  of  Columbia.  (4)  The  jurisdictions  claimed 
by  the  United  States  over  roads  made  by  it  must  be  either  concurrent 
or  exclusive;  the  first  would  subject  the  people  to  a  double  set  of  con- 

^Congressional  Debates,  Vol.  IV,  Part  I,  p.  717  (1827-28). 


SURRENDER    OF   THE    ROAD  8 I 

tradictory  laws  and  penalities,  and  the  second  would  completely  oust 
the  states.  (5)  If  the  "gate  bill"  were  passed,  every  person  who 
opposed  the  collection  of  toll,  or  quarreled  with  the  gatekeeper,  might 
be  seized  by  the  federal  marshal  and  tried  in  the  federal  district  court, 
and  finally  in  the  Supreme  Court  at  Washington ;  or  it  would  subject 
any  person  who  happened  to  get  into  an  affray  with  a  drunken  gate- 
keeper to  be  hanged  like  a  dog  for  high  treason,  for  this  would  be 
levying  war  against  the  United  States.  Mr.  Benton  claimed  that  the 
United  States,  after  constructing  the  road  with  the  consent  of  the  states, 
had  no  property  interest  in  it  to  cede,  surrender,  or  relinquish.  He 
offered  these  resolutions  as  a  friend  of  internal -improvements,  desiring 
an  interpretation  of  the  question  whether  the  individual  states  should 
be  charged  with  the  business  of  repairing  and  preserving  this  road. 
The  Senate  was  not  ready  to  answer  the  question  and  tabled  the 
resolutions.* 

January  14,  1828,  Mr.  Buchanan  offered  as  an  amendment  to  the 
bill,  known  as  the  "gate  bill,"  the  proposition  that  the  road  should  be 
ceded  to  the  states  through  which  it  passed,'  on  condition  that  the 
states  should  erect  toll-gates;  but  the  matter  went  over  for  a  year,  when 
he  defended  his  proposition  in  a  lengthy  speech.  He  thought  the 
passage  of  the  "gate  bill"  would  strike  a  blow  at  the  federal  Constitu- 
tion in  its  native  purity.  Pass  this  bill  giving  Congress  the  power  to 
erect  toll-gates,  and  interference  in  the  domestic  concerns  of  the  states 
and  the  barriers  between  the  United  States  and  the  states  would  be  torn 
down.  This  road  was  made  by  the  United  States  as  a  mere  proprietor; 
it  proceeded  as  any  corporation  or  private  individual  would  have  done ; 
the  state  of  Pennsylvania  even  annexed  a  condition  on  location  with 
which  the  United  States  complied  ;3  the  United  States  exercised  the 
right  of  eminent  domain  only  by  virtue  of  state  law;  and  this  estab- 
lished the  fact  that  the  United  States  could  appropriate  and  construct 
without  exercising  jurisdiction.  But  the  passage  of  this  bill  would 
change  the  United  States  from  proprietor  to  sovereign ;  it  would  be 
gaining  admission  within  the  states  as  a  friend  and  then  holding  pos- 
session as  a  sovereign.  The  right  to  demand  toll,  he  said,  was  a  sover- 
eign power;  it  included  (i)  the  stoppage  of  a  passenger  until  the  toll 
was  paid ;  (2)  his  trial  and  punishment,  if  he  should  either  by  force  or 
by  fraud  evade,  or  attempt  to  evade,  its  payment ;  (3)  a  discretionary 
power  as  to  the  amount  of  the  toll ;  (4)  the  trial  and  punishment  of 
persons  who  might  wilfully  injure  the  road  or  violate  the  police  regu- 

'^Congressional  Debates,  Vol.  IV,  Part  I,  pp.  717-23  (1827-28).  3  See  p.  22. 

^Ibid.f  p.  icx)4  (1827-28). 


82  THE    CUMBERLAND    ROAD 

lations  established  for  it.  If  passengers  were  compelled  to  pay  toll, 
this  meant  the  government  levying  the  toll  should  protect  them ;  for 
to  vest  the  power  to  collect  toll  in  one  sovereign  and  the  protection  of 
the  traveler  in  another  would  be  almost  an  absurdity.  Another  absurd- 
ity was  the  idea  that  the  United  States  could  exercise  jurisdiction  over 
the  road  as  an  incident  of  the  power  to  appropriate  and  construct. 
Mr.  Vance,  of  Ohio,  called  Buchanan's  attention  to  the  fact  that  the 
Pennsylvania  legislature  had  passed  an  act  at  its  last  session  giving  the 
United  States  power  to  erect  toll-gates  J-  Mr.  Buchanan  said  he  had  the 
utmost  respect  for  the  legislature  of  his  native  state ;  but  he  had  been 
informed  that  the  act  was  passed  out  of  a  strong  desire  for  the  preser- 
vation of  the  road,  and  without  debate,  the  constitutional  question  not 
being  considered.  Moreover,  the  people  of  Pennsylvania  had  not 
given  their  legislature  power  to  cede  jurisdiction  over  roads  to  the 
United  States.  It  could  cede  jurisdiction  over  sites  only  for  forts,  etc. 
If  it  could  do  otherwise,  it  would  be  possible  for  the  legislature  to  cede 
the  entire  state  and  thus  destroy  the  Union.  He  believed  in  a  whole- 
some jealousy  of  federal  power;  and  asked  all  those  who  believed  in 
protecting  the  rights  of  the  states  to  vote  against  the  "gate  bill."^ 

Mr.  Strong,  of  New  York,  thought  the  proposition  to  erect  toll- 
gates  was  merely  a  question  of  property;  granted  that  the  United 
States  as  a  proprietor  had  a  proprietary  interest,  she  had  the  right  to 
protect  and  preserve  it.  He  regretted  Mr.  Buchanan's  mention  of  state 
rights,  and  said  the  Union  was  weaker  than  the  states ;  if  it  ever  failed, 
it  would  be  because  of  state  action. ^  Mr.  Strong  thought  the  amend- 
ment of  Buchanan  to  cede  the  road  on  condition  that  Pennsylvania 
and  the  other  states  would  erect  toll-gates  involved  an  inconsistency 
and  an  impairment  of  state  sovereignity,  even  according  to  Buchanan's 
reasoning.  According  to  Buchanan,  the  United  States  had  no  power 
to  erect  toll-gates;  but  he  would  impose  this  as  a  condition  on  the 
states.  The  power  to  erect  toll-gates  was  either  in  the  United  States 
or  in  the  states ;  if  the  United  States  did  not  possess  it,  the  state  did ; 
therefore  a  binding  condition  on  the  part  of  the  United  States  was  an 
impairment  of  the  sovereignty  of  the  state.  Mr.  Strong  said  the 
United  States  had  a  property  interest  in  this  road  which  she  did  not 
have  in  other  mail-roads.'*  Mr.  Barbour,  of  Virginia,  traced  the  history 
of  the  attempt  to  appropriate  for,  and  construct,  internal-improvements, 
and  found  that  the  opinion  of  one  House  of  Representatives  and  two 

1  See  p.  79.  3  Ibid.^  pp.  247-50. 

2  Congressional  Debates,  Vol.  V,  pp.  240-44  (1828-29).  ^  Ibid. 


SURRENDER    OF    THE    ROAD  83 

Presidents  was  opposed  to  the  power  to  construct,  which  of  course 
involved  also  the  power  to  erect  toll-gates.  He  said  the  advocates  of 
this  "gate  bill"  derived  the  power  from  two  sources:  (i)  the  Consti- 
tution ;  (2)  the  compact  between  the  United  States  and  Ohio.  Under 
the  first,  Mr.  Barbour  said  the  power  to  lay  a  toll  was  the  power  to  tax, 
and  by  the  Constitution  there  were  two  limitations :  (i)  direct  taxes 
must  be  apportioned ;  (2)  other  taxes  must  be  uniform.  The  toll  as  a 
tax  did  not  attempt  to  apportion  according  to  population,  and  it  was 
not  uniform  unless  levied  on  all  the  roads  in  the  United  States.  Under 
the  compact  theory  the  United  States  was  under  obligation  to  appro- 
priate so  much  money  for  a  road,  and  to  construct  it  with  the  consent 
of  the  states  through  which  it  passed;  but  how  could  a  stipulation 
which  impaired  an  obligation  confer  dLpowerl  He  said  the  states  did 
not  surrender  soil  and  jurisdiction.  A  compact  between  Ohio  and  the 
United  States,  plus  consent  for  right  of  way  on  the  part  of  the  states  of 
Maryland,  Pennsylvania,  and  Virginia,  granted  no  power  to  Congress 
to  exercise  jurisdiction.  The  giving  of  a  new  power  which  it  had  not 
before  is  amending  the  Constitution.  This  could  be  done  only  by 
three-fourths  of  the  states.  Mr.  Barbour  would  amend  Mr.  Buchanan's 
amendment  to  read  "that  we  cede  all  right  which  we  claim  to  have 
and  not  all  the  right  which  we  may  JiaveT  He  would  also  attach 
no  condition  as  to  the  erecting  of  toll-gates,  but  make  an  absolute  sur- 
render.' Mr.  Fort  answered  affirmatively  these  questions:  (i)  Has  the 
government  of  the  United  States  power  to  construct  roads  within  the 
states?  (2)  Has  it  power  to  levy  tolls  on  the  roads  thus  constructed? 
(3)  Is  it  expedient  to  exercise  the  power  in  the  present  case  ?  In  the 
course  of  his  speech  he  denied  the  following:  (i)  that  the  federal 
government  is  a  compact  among  the  governments  of  the  states;  (2) 
that  its  powers  are  derived  from  the  state  governments;  (3)  that  it 
properly  exists  only  within  the  ten  miles  square  comprising  the  District 
of  Columbia ;  (4)  that  the  sovereignty  of  each  state  over  its  soil  is  par- 
amount and  exclusive.  In  reply  to  the  statement  that  a  toll  was  a  tax, 
and  could  not  be  apportioned  according  to  population  or  made  uni- 
form, he  said  it  was  sufficient  if  equal  to  every  person  who  used  the  thing 
taxed^  Mr.  Anderson,  of  Pennsylvania,  would  not  impose  tolls  on  the 
road  until  it  ceased  to  be  really  national  and  became  a  mere  local 
road.  He  said  the  legislatures  of  the  states  had  not  indicated  that  they 
wanted  a  property  interest  in  the  road.  Pennsylvania  had  by  its  reso- 
lution intimated  to  the  contrary.  Why  undertake  to  force  the  road 
upon  the  states  ?3 

I  Congressional  Debates,  Vol.  V,  pp.  250-34.         2 Ibid.,  pp.  266-70.         Zlbid,^  p.  275. 


84  THE    CUMBERLAND    ROAD 

Mr.  Stewart,  of  Pennsylvania,  said  his  colleague  Buchanan  regarded 
this  bill  with  more  alarm  than  did  the  South  the  tariff.  He  had  called 
it  a  "specter."  He  said  there  was  only  one  step  for  Buchanan  to  take 
to  land  him  within  the  ranks  of  the  state-rights  party,  and  that  was 
to  declare  the  tariff  unconstitutional.  Perhaps  he  would  do  so  at  the 
next  session.  This  would  entitle  him  to  full  communion.  He  said 
the  act  of  1825  in  regard  to  post-offices  imposed  many  penalties, 
not  only  on  the  Cumberland  Road,  but  on  all  roads.  This  bill  imposed 
light  penalties  for  destroying  a  national  improvement  that  had  already 
cost  $2,000,000.'  Mr.  Smith,  of  Indiana,  said  the  amendment  assumed 
more  for  the  federal  government  than  the  bill  itself.  He  said  the 
amendment  proposed  (i)  to  put  the  road  in  repair;  (2)  to  cede  it  to 
states  in  which  it  lay,  upon  condition  that  states  accept  the  same,  with 
the  restrictions  annexed  that  they  should  never  collect  more  toll  than 
would  be  necessary  to  keep  it  in  repair.  This  assumed  (i)  that  Con- 
gress had  power  to  take  the  materials  necessary  for  the  repair,  and 
enter  upon  and  repair  it ;  (2)  that  the  road  when  repaired  was  the  prop- 
erty of  the  United  States ;  (3)  that  Congress  could  constitutionally 
cede  the  property  of  the  United  States  in  the  road  to  the  several 
states ;  (4)  that  it  had  the  power  to  impose  restrictions  on  the  legisla- 
tion of  the  states  on  the  subject.     He  said  : 

We  cannot  repair  this  Road  unless  we  can  constitutionally  use  the  means ; 
we  cannot  cede  it  unless  it  is  our  property;  we  cannot  impose  restrictions  on 
the  legislation  of  the  states  in  relation  to  this  Road  unless  the  Road  is  sub- 
ject to  our  jurisdiction  and  control.^' 

^  Bell,  of  Tennessee,  and  Mitchell,  of  South  Carolina,  both  made 
strong  speeches  against  the  bill  and  internal-improvements  gener- 
ally, charging  that  such  improvements  were  for  the  benefit  of  the  non- 
slaveholding  states.^ 

Buchanan's  amendment  to  cede  the  road  was  lost  by  a  vote  of  77 
to  113.  The  bill  was  ordered  to  be  engrossed,  and  passed  the  House 
by  a  vote  of  105  to  91.  Without  debate,  by  a  vote  of  35  to  6,  the 
Senate  struck  out  the  provisions  for  the  erection  of  toll-gates.  The 
House  concurred  on  March  3,  1829;  and  an  appropriation  of  $100,000 
was  made  for  repairs. 

The  fight  for  jurisdiction  was  defeated,  and  Monroe's  method  of 
appropriating  for  improvements  of  national  importance  triumphed. 
It  was  confidently  believed  that  Adams  stood  ready  to  approve  a  bill 
applying  the  doctrine  of  the  implied  powers ;  but  a  change  had  come 

*  Congressional  Debates,  Vol.  V,  pp.  275-82.  2  Ibid.,  pp.  283-90.  3  Ibid,,  p.  74. 


SURRENDER    OF    THE    ROAD  85 

over  Congress,  especially  the  Senate,  and  the  President  had  no  oppor- 
tunity to  pass  on  the  constitutionality  of  such  a  bill.  Adams's  mes- 
sages to  Congress  review  at  great  length  the  work  of  the  Board  of 
Engineers  provided  for  in  the  act  of  1824,  It  was  during  his  adminis- 
tration on  July  4,  1828,  that  the  Chesapeake  and  Ohio  Canal  was 
opened.  In  his  oration  on  this  occasion  the  President  said  the  steps 
in  accomplishing  the  destiny  of  our  country  were,  first,  the  Declaration 
of  Independence  ;  second,  the  formation  of  the  Constitution  ;  third, 
the  opening  of  means  of  communication  binding  the  East  and  the  West 
together.  During  his  administration  there  was  great  activity  in  internal- 
improvements.  The  United  States  appropriated  money  and  subscribed 
for  stocks  in  many  canal  companies.  The  secretary  of  the  treasury 
voted  the  shares  and  collected  the  dividends  for  the  United  States. 

The  following  sums  were  expended  on  rivers  and  harbors:  1824, 
$40,000;''  1825,^83,000;''  and  the  last  year  of  Adams's  administra- 
tion, $189,000.15.3  From  1824  to  1828  the  roads  planned  and 
partly  constructed  by  the  United  States  amounted  to  19 14  miles;  and 
the  expenditures  on  internal-improvements  from  October,  1827  to  July, 
1828,  amounted  to  $1,135,168.'* 

2.  Surrender  of  the  Cumberland  Road  to  the  States  through  which  it 
Passed. — President  Jackson  did  not  discuss  internal-improvements  in 
his  inaugural  address;  but  in  his  first  annual  message  said  that  the 
public  debt  would  soon  be  paid;  that  the  tariff  had  been  adjusted  in 
such  a  manner  that  a  surplus  would  be  available,  which  he  thought 
should  be  distributed  among  the  states,  on  the  basis  of  population,  for 
internal-improvements.  If  Congress  did  not  deem  such  a  plan  con- 
stitutional, an  amendment  should  be  adopted.^ 

Congress  did  not  adopt  the  President's  suggestion.  Instead  a  bill 
was  passed  requiring  the  federal  government  to  subscribe  $150,000  of 
stock  in  the  Maysville  turnpike.  In  1796  the  government  gave  aid  to 
Zane  to  cut  a  trace  from  Zanesville,  Ohio,  to  Limestone  (Maysville), 
Ky.  This  route  was  extended  through  Kentucky  and  Tennessee, 
and  it  was  hoped  to  continue  it  to  New  Orleans.  Statesmen  of  the 
South  traveled  on  this  trace  to  Zanesville  where  it  intersected  the 
Cumberland  Road.  The  bill  in  question  provided  only  for  macadami- 
zing a  link  of  this  road,  from  Maysville  to  Lexington,  Ky.  It  really 
was  a  southern  offshoot  of  the  Cumberland  Road,  and  in  the  debates 
an  effort  was  made  to  show  that  it  was  a  national  improvement,  as  this 

I  United  States  Statutes  at  Large^  Vol.  IV,  p.  38. 

"2 Ibid.,  p.  175.  4  State  Papers.,  Vol.  I,  No.  7,  20th  Cong.,  2d  Sess. 

^Ibid.,  p.  363.  6  Messages  and  Papers  of  the  Presidents^  Vol.  II,  p.  451. 


86  THE    CUMBERLAND    ROAD 

was  the  test  after  Monroe's  veto  in  1822.  The  President  vetoed 
the  bill  on  the  ground  that,  as  the  road  was  short  and  wholly  within 
one  state,  it  was  local  and  not  national  in  character.  This  was  the  first 
veto  applying  Monroe's  doctrine  to  a  concrete  case.  On  the  general 
question  of  internal-improvements,  he  said  that  an  amendment  to 
the  Constitution  was  necessary,  if  Congress  wished  the  power  of  juris- 
diction as  well  as  the  power  of  appropriation.  This,  in  his  opinion, 
was  well  illustrated  in  the  history  of  the  Cumberland  Road.^ 

The  debate  in  the  House  on  the  proposition  to  pass  the  bill  over 
the  veto  was  largely  personal  and  tumultuous  rather  than  constitutional. 
Stanberry,  of  Ohio,  charged  that  the  veto  was  the  work  of  the 
"ministry;"  in  fact,  of  the  "great  magician"  (Van  Buren).  This  was 
stoutly  denied  by  Polk,  of  Tennessee,  and  Barbour,  of  Virginia.  The 
vote  on  passing  the  bill  over  the  veto  was  96  to  90 ;  and  it  failed  for 
lack  of  the  constitutional  majority.'  The  President  was  clearly  opposed 
to  federal  jurisdiction  over  internal-improvements,  but  favored  appro- 
priations for  national  improvements. 

There  was  another  phase  to  the  President's  objections.  A  common 
practice  was  for  the  United  States  to  subscribe  for  stock  of  various 
internal-improvement  companies  and  vote  the  stock.  This  practice 
was  viewed  with  disfavor  by  the  President.  In  his  second  annual  mes- 
sage he  said : 

All  improvements  effected  by  the  funds  of  the  Nation  for  general  use 
should  be  open  to  the  enjoyment  of  all  our  fellow  citizens,  exempt  from  the 
payment  of  tolls  or  any  imposition  of  any  character.  The  practice  of  thus  ming- 
ling the  concerns  of  the  Government  with  those  of  the  states  or  of  individuals,  is 
inconsistent  with  the  object  of  its  institution  and  highly  impolitic.  A  different 
practice,  if  allowed  to  progress,  would  ultimately  change  the  character  of  this 
Government  by  consolidating  into  one  the  General  and  State  Governments, 
which  were  intended  to  be  kept  forever  distinct.  The  power  which  the  Gen- 
eral Government  would  acquire  within  the  several  states  by  becoming  the 
principal  stockholder  in  corporations,  controlling  every  canal  and  each  sixty 
or  one  hundred  miles  of  every  important  road  and  giving  a  proportional  vote 
in  all  their  elections,  is  almost  inconceivable  and  in  my  view  dangerous  to 
the  liberty  of  the  people.^ 

How  did  the  President's  general  attitude  affect  the  Cumberland 
Road  ?  He  was  clearly  opposed  to  tolls  for  repairs,  as  such  a  policy 
included  national  jurisdiction ;  also  to  anything  that  looked  like 
national  administration  or  jurisdiction  in   subscribing  for  and  voting 

^  Messages  and  Papers  of  the  Presidents,  Vol.  II,  p.  483. 

2  Congressional  Debates,  Vol.  VI,  Part  II,  pp.  1140-48. 

Z Messages  and  Papers  of  the  Presidents,  Vol.  II,  pp.  509,  510. 


SURRENDER    OF    THE    ROAD  87 

shares  in  private  companies  in  the  states.  On  the  constructive  side,  he 
was  in  favor  of  appropriating  for  national,  not  local,  improvements ; 
he  also  favored  an  amendment  to  clarify  the  situation ;  and  finally  he 
had  a  personal  program,  viz.,  to  distribute  the  surplus  among  the  states 
and  let  them  undertake  their  own  internal-improvements.  On  the 
question  of  extending  the  Cumberland  Road  westward,  he  might  be 
expected  to  favor  appropriations ;  perhaps  by  implication  he  might  be 
expected  to  favor  appropriations  for  the  repairs  on  the  road  east  of  the 
Ohio;  but  the  last  two  propositions  were  counter  to  his  pet  scheme  of 
distribution. 

The  President's  attitude  was  all-important,  as   no  bill   could  be         / 
passed  over  his  veto.    Annual  appropriations  for  the  repair  of  the  road        I 
were  being  made ;  but  this  method  could  not  continue  indefinitely, 
inasmuch  as  tolls  could  not  be  levied  by  the  United  States  for  repairs. 
Because  of  the  lack  of  jurisdiction,  a  resort  to  state  control,  with  the 
consent  of  Congress,  became  an  absolute  necessity.  j 

The  first  state  to  take  action  in  tij^s  matter  was  Ohio.  February 
17,  1 83 1,  Mr.  Burnet  laid  before  the  Senate  a  letter  from  the  Gov- 
ernor of  Ohio  which  stated  that  the  Ohio  legislature  had  passed  an  act 
providing  for  the  preservation  and  repair  of  the  Cumberland  Road 
within  the  state,  and  asking  the  assent  of  Congress  to  the  same.  The 
provisions  of  the  act  were  as  follows  : 

Sec.  I.  The  governor  of  Ohio  was  authorized,  with  the  consent  of      \ 
Congress,  to  take  charge  of  such  part  of  the  road  within  the  state  as       \ 
was  finished,  or  such  parts  as  should  be  progressively  finished,  and        \ 
erect  toll-houses  and  collect  tolls ;  but  the  toll-gates  were  not  to  exceed 
one  for  every  twenty  miles. 

Sees.  2-4  provided  for  the  collection  of  toll  and  regulated  the  rates, 
and  closed  with  the  following  : 

No  toll  shall  be  received  or  collected  for  the  passage  of  any  stage  or  coach 
conveying  the  United  States  mails,  or  horse  bearing  the  same,  or  any  wagon 
or  carriage  laden  with  the  property  of  the  United  States,  or  any  cavalry  or 
other  troops,  arms  or  military  stores,  belonging  to  the  same,  or  to  any  of  the 
states  comprising  this  Union,  or  any  person  or  persons  on  duty  in  the  military 
service  of  the  United  States,  or  of  the  militia  of  any  of  the  states. 

The  remaining  sections  regulated  the  policing  of  the  road  in  detail, 
and  provided  that  the  general  assembly  might  at  future  sessions  change, 
alter,  or  amend  the  act  without  the  consent  of  Congress,  provided  the 
tolls  collected  were  necessary  for  the  preservation  of  the  road  according 
to  the  true  intent  of  the  act.' 

I  Congressional  Deiaies,  Vol.  VIl,  Appendix^  pp.  62-63  (1830-31). 


88  THE    CUMBERLAND    ROAD 

Senator  Burnet,  of  Ohio,  said  it  was  generally  believed  in  Ohio  that 
the  jurisdiction  over  the  road  was  in  Congress,  and  that  Ohio  could 
not  act  without  the  consent  of  Congress.  Mr.  Hayne,  of  South  Caro- 
lina, said  he  was  in  favor  of  giving  the  consent,  but  urged  a  complete 
cession  of  the  road,  to  the  end  that  the  United  States  might  be  rid  of 
the  question.  Senator  Poindexter,  of  Mississippi,  was  in  favor  of  a 
complete  cession.  He  had  two  objections  to  giving  assent  to  the  law 
of  Ohio  :  (i)  the  United  States  was  undertaking  to  transfer  to  the  legis- 
lature of  Ohio  the  right  to  erect  toll-gates  and  exercise  jurisdiction 
when  it  did  not  possess  the  right  itself;  (2)  the  justices  of  the  peace  in 
Ohio  were  to  have  jurisdiction  over  offenses  against  the  road.  This  was 
unconstitutional,  as  the  judicial  power  was  vested  in  one  supreme  court 
and  such  inferior  courts  as  Congress  might  create.  The  United  States, 
he  said,  had  no  authority  to  constitute  state  justices  of  the  peace  as 
/federal  officers.  It  was  replied  that  it  was  the  state  of  Ohio  that 
empowered  the  justices  of  the  peace  to  act,  and  not  the  United  States ; 
that  some  claimed  the  jurisdiction  was  in  the  United  States,  while  others 
claimed  it  was  in  the  state;  this  was  simply  a  method  of  preventing  a 
collision  without  settling  the  question.  Hendricks,  of  Indiana,  said 
many  were  opposed  to  an  absolute  cession  of  the  road  to  the  states,  but 
some  measures  should  be  taken  to  preserve  it  from  ruin. 

The  bill  giving  the  consent  of  Congress  passed  the  Senate  by  a  vote 
of  29  to  7.' 

In  the  House  the  principal  objection  to  the  bill  was  that  the  tolls 
would  be  paid  largely  by  persons  from  outside  of  Ohio,  as  most  of  the 
exemptions  from  tolls  were  for  inhabitants  of  Ohio.  The  bill  passed 
by  a  vote  of  89  to  60,  and  became  a  law  March  2,  1831.^ 

February  7,  1832,  Virginia  passed  an  act  almost  identical  with  that 
of  Ohio.  March  2,  1833,  Congress  declared  its  assent;  but  in  doing 
so  provided  that  the  assent  was  to  remain  in  force  during  the  pleasure 
of  Congress ;  also 

that  this  act  shall  not  be  construed  as  preventing  the  United  States  from 
resuming  whatever  jurisdiction  it  may  now  have  over  the  said  road,  whenever, 
in  its  discretion,  it  shall  deem  it  proper  to  do  so.^ 

April  4,  1 83 1,  Pennsylvania  passed  an  act  for  the  preservation  of  the 
Cumberland  Road.  Maryland  did  likewise  January  23,  1832.  These 
acts  were  not  approved  by  Congress  until  July  3,  1832.  The  consent 
was  to  remain  in  force  only  during  the  pleasure  of  Congress.'*     The 

I  Congressional  Debates,  Vol.  VII,  pp.  209,  287  (1830-31). 

^Ibid.,  p.  228  (1830-31).  ■i  Appendix  to  Congressional  Debates,  Vol.  IX,  Part  II,  p.  23, 

A  Ibid.,  Vol.  VIII,  Part  III,  p.  21  (1831-32). 


SURRENDER    OF    THE    ROAD  89 

road  in  these  two  states  was  in  bad  condition ;  hence  they  stipulated 
that  it  should  not  be  finally  received  until  placed  in  good  repair  and 
toll-gates  erected  by  the  United  States.  These  conditions  were  met  by 
large  appropriations  from  the  United  States  treasury,  but  only  after  the 
patience  of  Congress  was  exhausted.  The  road  was  accepted  by  these 
two  states  in  1835.  The  acts  of  Pennsylvania  and  Maryland  were 
identical,  differing  slightly  from  the  Ohio  and  Virginia  acts  in  regard 
to  exemption  from  tolls.  The  act  in  this  particular  was : 
that  no  toll  shall  be  received  or  collected  for  the  passage  of  any  wagon  or 
carriage  laden  with  the  property  of  the  United  States,  or  any  cannon  or  mili- 
tary stores  belonging  to  the  United  States  or  to  any  of  the  states  composing 
the  Union. 

These  differences  are  of  importance,  and  will  be  discussed  in  another 
connection. 

In  1820  an  appropriation  was  made  for  the  survey  of  the  road  west 
of  the  Ohio  ;  in  1825  an  appropriation  was  made  for  construction  ;  from 
1830  to  1838  the  appropriations  were  divided  among  Ohio,  Indiana, 
and  Illinois,  thus  breaking  the  continuity  of  the  road.  This  was  done 
at  the  urgent  demand  of  Indiana  and  Illinois.  The  sums  appropriated 
were  large  up  to  1830.  The  last  regular  appropriation  was  made  in  1838. 
The  personal  attitude  of  the  president,  the  hard  times,  state-rights 
doctrines  which  reached  their  height  during  Jackson's  administration, 
the  railroads,  the  fact  that  the  road  was  already  surrendered  east  of  the 
Ohio  and  in  part  of  Ohio,  together  with  factious  opposition,  account 
for  the  cessation  of  congressional  activity  and  support  during  the  thir- 
ties. The  last  subject  mentioned,  factious  opposition,  no  doubt 
accounts  for  Clay's  defection.  February  26,  1838,  Mr.  Clay,  in  the 
Senate,  showed  clearly  that  he  would  no  longer  support  the  Cumber- 
land Road  because  of  Jackson's  veto  of  the  Maysville  Turnpike  bill. 
He  said  that  internal  improvements  had  been  suspended  by  the  veto 
of  the  present  administration  —  an  administration  supported  by  the 
senators  that  were  then  clamoring  for  an  appropriation  for  the  Cum- 
berland Road.  He  declared  that  Kentucky  and  Tennessee  had  received 
less  benefit  from  the  expenditure  of  public  funds  than  any  other  states  ; 
yet  when  it  was  proposed  to  extend  the  Cumberland  Road  to  Mays- 
ville, Lexington,  and  Nashville,  the  bill  was  vetoed  ;  further,  the  western 
states  could  not  claim  an  appropriation  for  the  road  on  the  basis  of 
the  compacts,  as  the  "2  percent,  fund"  had  been  exhausted  a  thousand 
times  over.^ 

''■Appendix  to  Congressional  Debates,  Vol.  XII,  Part  I,  p.  616  (1835-36). 


90  THE    CUMBERLAND    ROAD 

Tipton,  Hendricks,  and  many  others  claimed  that  the  federal  gov- 
ernment was  bound  by  "compacts"  with  Indiana,  Illinois,  and  Mis- 
souri to  build  the  road  to  Jefferson  City,  Mo.  They  claimed  that  the 
fund  pledged  for  the  construction  of  the  Cumberland  Road  would 
eventually  amount  to  ^7,000,000,  and  that  it  would  be  a  breach  of  faith 
not  to  complete  the  road  to  the  extreme  western  states,  as  their  funds 
had  been  used  on  the  road  in  Ohio.  There  was  a  general  disposition 
to  regard  the  "compact"  as  binding;  therefore  the  road  might  have 
been  completed,  had  it  not  been  for  the  quarrel  on  location  in  Ohio 
and  at  the  Mississippi  River. 

The  general  obligation  of  the  United  States  to  complete  the  road 
was  urged  repeatedly  by  the  western  states.  The  citizens  of  Ohio 
urged  by  memorial  the  binding  nature  of  the  compact,  the  special 
object  of  which  was  to  show  that  the  United  States  was  under  obliga- 
tion to  complete  the  road  to  Ohio  by  the  erection  of  a  bridge  over  the 
Ohio  River  at  Wheeling.  The  argument  was  stated  as  follows :  By 
the  act  of  1802  the  United  States  was  bound  by  compact  to  construct 
a  road  "/<?  the  state  [Ohio] ;"  but  the  act  of  1806  fell  short,  as  it  said 
"to  the  Ohio  River"  instead  of  "/^  the  state.''  The  act  of  1820  and 
1825  said  from  "Wheeling  to  the  Mississippi  River."  The  memorial- 
ists pointed  out  that,  beginning  with  1806,  the  acts  provided  for  no 
bridge  over  the  Ohio  at  Wheeling ;  that  the  want  of  a  bridge  was  an 
intolerable  grievance,  and  the  failure  to  construct  it  was  a  violation 
of  the  "compact"  of  1802  which  called  for  a  road  "to  the  Ohio,  to  the 
state  of  Ohio  and  through  the  same."  The  bridge  was  not  built  by 
the  United  States. 

The  obligation  of  the  United  States  to  complete  the  road  came  up 
again  in  the  House,  April  19,  1838.  Mr.  Cushing  said  the  acts  on  the 
Cumberland  Road  belonged  to  the  land  system  of  the  United  States ; 
that  the  general  tenor  of  the  acts  from  1802  to  1820  was  of  such  a 
character  as  to  bind  the  United  States  to  complete  the  road.  He  said  the 
acts  called  for  a  road  "/^  Ohio''  ^' to  Indiana,"  '^to  Illinois''  ^' to  Missouri'* 
and  "  to  Jefferson  City."  He  further  stated  that  there  were  higher  obliga- 
tions than  those  of  "compact,"  namely,  the  territorial  and  social 
development  of  the  West.'  Mr.  Corwin,  of  Ohio,  said  that  the  states 
had  exempted  the  lands  of  the  United  States  from  taxation  for  five 
years  when  there  was  not  much  but  land  to  tax.  This  tax  he  estimated 
at  $6,000,000  ;  while  650  miles  of  road,  at  $6,000  a  mile — the  original 
estimate — amounted  to  only  $3,900,000.     The  additional  cost  of  the 

^Appendix  to  Congressional  Debates,  25th  Cong.,  2d  Sess.,  p.  523. 


SURRENDER    OF    THE    ROAD  9 1 

road  he  charged  to  bad  management  in  construction  and  poor  judg- 
ment on  the  part  of  Congress  as  to  time  of  appropriation." 

A  Senate  committee  made  a  report  on  completing  the  Cumberland 
Road,  February  lo,  1840.  The  committee  answered  the  following 
questions :  (i)  Is  the  Cumberland  Road  a  national  work  and  entitled 
to  the  favorable  consideration  of  the  general  government?  (2)  Is  the 
general  government  bound  in  good  faith,  under  the  "compacts"  with 
the  states  of  Ohio,  Indiana,  Illinois,  and  Missouri,  to  complete  the 
road?  Seeking  to  answer  the  first  question,  the  committee  reminded  the 
Senate  of  the  early  separation  of  the  East  and  the  West  by  the  mountains 
and  of  the  general  lack  of  any  means  of  communication  between  these 
sections  except  by  means  of  the  circuitous  pathways  of  the  Indians. 
At  the  time  of  the  acquisition  of  lands  of  the  West  the  treasury  was 
exhausted,  and  these  lands  made  the  United  States  government  the 
great  land  proprietor  of  the  West.  The  policy  of  the  United  States 
was  to  replenish  her  treasury  and  pay  the  Revolutionary  War  debt  by 
fostering  the  settlement  of  these  wild  lands.  All  the  Presidents  from 
Washington  down  had  held  the  same  large  view  in  regard  to  national 
improvements. 

None  denied  the  proprietary  right  to  construct  roads  to  and  through  the 
public  domain,  and  few  doubted  the  power  to  construct  those  strictly  National 
in  character,  as  the  Cumberland  Road  was  viewed  by  all. 

The  road  had  been  viewed  as  a  great  military,  commercial,  postal, 
national  thoroughfare.  The  secretary  of  war  (Calhoun)  in  1824  was 
quoted  as  thinking  the  road  strictly  national.  This  was  surely  con- 
clusive, for  it  came  from  a  state-rights  man.  Jackson  had  approved 
appropriations  for  the  road  even  after  he  had  vetoed  the  Maysville  road 
bill.  All  these  facts,  taken  together,  proved,  in  the  opinion  of  the 
committee,  that  the  Cumberland  Road  was  a  national  work. 

Answering  the  second  question,  the  committee  traced  the  ordinance 
of  1787,  and  the  development  of  the  public  domain  until  Ohio  was 
admitted  and  the  compact  was  made  to  build  a  road  from  the  "  2  per 
cent,  fund  "to  ^.nd  through  Ohio,  then  Indiana,  Illinois,  and  to  Missouri, 
and  through  it  to  Jefferson  City.  The  committee  then  asked  the 
question :  Did  the  United  States  bind  herself  to  make  a  road  leading 
to  and  through  these  states,  or  to  expend  2  per  cent,  of  land  sales 
toward  that  object  ?  If  the  first,  she  was  bound  to  make  the  road, 
whether  the  reservation  was  sufficient  or  not.  If  the  latter,  she  became 
a  trustee  to  the  states  for  the  amount,  and  was  reponsible  only  for  the 

I  Appendix  to  Congressional  Debates,  2sth  Cong,,  2d  Sess.,  p.  533. 


92  THE    CUMBERLAND    ROAD 

judicious  expenditure  of  the  reservation.  The  general  understanding 
was  that  the  general  government  was  to  complete  the  road  to  and 
through  the  states  named  in  the  compacts.  Such  was  her  interest, 
enlightened  counsels  and  facility  for  settling  the  lands  of  the  West. 
The  United  States  owed  a  debt  "to  those  who  periled  their  lives  and 
braved  the  hardships  and  sufferings  incident  to  the  settlement  of  the 
new  country."  Attention  was  called  to  the  fact  that  the  compact  did 
not  provide  for  a  grant  to  the  states  of  2  per  cent.,  but  a  reservation  by 
the  general  government  for  a  road  running  to  and  through  the  states. 
Three  per  cent,  was  granted  to  the  states,  subject  to  their  own  discre- 
tion ;  while  the  2  per  cent,  was  reserved  independent  of  the  states 
except  as  to  right  of  way.  In  the  one  case  the  general  government 
retained  the  funds  and  the  power  to  appropriate  it  to  just  such  work  as 
it  thought  proper ;  in  the  other,  it  parted  with  both  funds  and  power. 
The  committee  did  not  think  the  states  would  have  consented  to  have 
the  United  States  expend  the  entire  5  per  cent,  at  her  own  discretion. 
The  committee  said  the  lands  in  states  subject  to  the  compact 
amounted  to  123,000,000  acres.  The  tax  on  this  for  five  years  would 
equal  $5,000,000.  Counting  650  miles  to  St.  Louis,  at  Gallatin's 
estimate  of  $6,000  a  mile,  the  road  would  cost  a  total  of  $3,900,000. 
This  estimate  had  proved  too  low ;  but  even  if  the  United  States  had 
laid  out  the  road  on  too  grand  a  scale,  it  was  not  the  fault  of  the 
states,  as  they  were  entitled  to  the  road  under  the  "compact,"  whether 
the  2  per  cent,  proved  sufficient  or  not. 

Considering  the  general  government  merely  as  a  trustee,  under  no 
obligation  to  finish  the  road,  after  expending  the  2  per  cent,  fund,  the 
committee  proved  that  the  United  States  had  not  lived  up  to  its  compact, 
as  she  had  decreased  the  land  fund  as  follows  :  (1)  by  passing  laws  making 
grants  of  land  to  individuals  and  companies ;  (2)  by  reducing  the  price 
of  land ;  (3)  by  paying  military  services  in  land ;  (4)  by  a  system  of  pre- 
emptions; (5)  by  making  small  and  untimely  appropriations;  (6)  by 
injudicious  expenditure  and  administration. 

In  reply  to  the  statement  that  the  national  character  and  public 
utility  of  the  road  ceased  when  it  reached  Wheeling  on  the  Ohio,  the 
committee  said  the  travel,  mails,  armies,  and  munitions  of  war  that 
crossed  to  the  westward  of  the  mountains  must  make  large  use  of  this 
road,  as  the  Ohio  River  was  frozen  over  the  greater  part  of  the  winter, 
and  was  too  low  for  navigation  a  portion  of  the  summer  and  autumn. 
The  committee  concluded  that  in  point  of  national  importance  and 
utility  the  road  had  no  rival  of  its  kind,  and  that  every  consideration 


SURRENDER    OF   THE    ROAD  93 

of  national  propriety,  expediency,  and  faith,  as  pledged  in  the  solemn 
compacts,  required  its  speedy  completion.  The  committee  recom- 
mended appropriations  according  to  the  estimates  of  the  secretary  of 
war.'  It  was  on  this  report  that  J.  C.  Calhoun  made  his  last  great  speech 
on  internal  improvements.'  With  the  growth  of  his  extreme  state-rights 
theories  his  attitude  had  changed.  On  April  i,  1840,  he  addressed  the 
Senate,  saying  that  the  United  States,  after  a  trial  of  a  quarter  of  a 
century,  was  wholly  unfit  to  carry  on  internal-improvements ;  that  it 
would  be  poor  policy  to  incur  a  debt  for  the  completion  of  the  road, 
and  to  pledge  the  "  2  per  cent,  fund  "  as  if  there  were  some  magic  in  this 
fund  if  only  pledged.  He  further  stated  that  the  road  had  cost  $18,000 
a  mile,  while  Georgia  then  was  constructing  a  railroad  at  $15,000  a 
mile;  that  the  United  States  up  to  1833  had  expended  $10,000,000  for 
internal  improvements,  of  which  sum  Georgia  had  received,  $17,000, 
South  Carolina,  Kentucky  and  Virginia  nothing,  while  Tennessee's 
part  was  only  $27,000.  He  thought  that  other  states  had  secured 
large  sums  for  internal-improvements  by  importunity  and  political 
intrigue,  and  that  this  system  of  "  internal  bleeding  should  stop.^" 
Webster  spoke  favoring  internal-improvements  in  general ;  but  the  bill 
failed. 

Again  in  1841  a  Senate  committee  reported  on  the  obligation  of 
the  United  States  to  finish  the  road.  Various  acts  of  Congress  were 
examined.  The  road  was  located  and  constructed  by  Congress,  with 
consent  of  the  states,  as  a  great  national,  commercial,  military,  and 
mail  route;  also  as  an  aid  to  emigrants  in  reaching  the  West,  thereby 
enhancing  the  value  of  the  public  domain.  The  contracting  parties 
were  (i)  the  federal  government;  (2)  the  states  through  which  the  road 
was  located ;  (3)  and  the  citizens  that  had  relinquished  land  and  materials. 
Each  of  these  parties,  according  to  the  committee,  stood  bound  to  the 
other,  to  observe  the  same  good  faith  that  should  exist  between  indi- 
vidual citizens.  The  states  and  citizens  had  done  their  part,  the  United 
States  should  do  its  part.  An  unfavorable  vote  was  the  answer.  Clay 
claiming  that  the  compact  was  fulfilled  and  the  United  States  under  no 
obligations  to  contract  a  debt  of  $7,000,000  to  complete  the  road.* 
Some  expedients  were  tried  to  secure  the  completion  of  the  road. 
April  I,  1836,  the  Ohio  legislature  prayed  that  the  annual  appropria- 
tions might  be  turned  over  to  the  state  board  of  public  works.     The 

1  Senate  Documents^  Vol,  IV,  No.  160,  26th  Cong.,  ist  Sess.  (February  10,  1840).  This  is  an  able 
report. 

2  For  his  early  attitude  see  p,  51.  3  Calhoun's  Works,  Vol.  Ill,  p.  488. 

*>  Senate  Documents,  Vol.  IV,  No.  197,  26th  Cong.,  2d  Sess.  (February  17,  1841). 


94  THE    CUMBERLAND    ROAD 

House  Committee  on  Roads  and  Canals  approved  the  plan ;  but  it  was 
not  adopted/  Estimates  were  reported  to  the  House  on  the  proposition 
to  supplant  the  macadam  system  with  a  railroad  which  from  Columbus, 
Ohio,  to  Vandalia,  111.,  could  be  constructed  with  double  track  and 
repaired  for  less  a  year  than  it  would  cost  to  complete  the  Cumberland 
Road  on  the  old  plan.  This  proposition  seems  to  have  been  defeated 
on  the  ground  that  a  railroad  was  a  monopoly  and  not  so  democratic 
as  a  wagon  road;  railroads  might  do  for  the  wealthy  of  the  East,  but 
the  people  of  the  West  were  democratic  republicans,  plain  men,  who 
wanted  no  toll,  no  monopoly,  nothing  exclusive ;  who  wanted  a  real 
people's  road.^  Much  was  said  in  Congress  about  continuing  the 
Cumberland  Road  because  of  the  "compacts"  with  the  states  and  the 
agreement  to  expend  the  "2  per  cent,  fund."  The  facts  in  regard  to 
the  land  sales  and  expenditures  were  as  follows :  The  "  2  per  cent, 
fund"  for  the  four  states  of  Ohio,  Indiana,  Illinois,  and  Missouri  was 
$972,978.20.  There  was  expended  on  the  road:  east  of  the  Ohio 
River,  for  construction  $1,657,325.20,  for  repairs  $1,126,686.82;  in  Ohio, 
$1,943461.95;  Indiana,  $985,000;  Illinois,  $596,000;  for  survey  of 
the  road  from  Wheeling  to  the  Mississippi  River,  $10,265.85;  total 
expenditures,  $6,318,739.82.  The  difference  between  the  total  expen- 
diture and  the  "2  per  cent,  fund"  was  $5,345,761.62.3  Still  the  three 
western  states  clamored  for  the  completion  of  the  road  on  the  ground 
that  their  funds  were  expended  on  a  part  of  the  road  too  far  east. 

The  large  appropriations  of  1838  were  practically  expended  by  1840, 
when  the  property  of  the  United  States  used  in  construction  was  being 
sold,  and  the  proceeds  applied  to  the  final  work  of  the  road  prepara- 
tory to  deserting  it;  even  the  little  steamer  "Terre  Haute,"  used  for 
transportation  of  materials  on  the  Wabash,  foundered  on  the  way  to 
Cincinnati  to  be  sold.  The  situation  for  the  road  was  desperate.  In 
spite  of  the  hard  times,  the  deplorable  condition  of  the  federal  treasury, 
and  the  general  suspension  of  internal-improvements,  the  advocates  of 
the  Cumberland  Road  made  desperate  efforts  to  have  the  road  com- 
pleted to  Jefferson  City,  Mo.,  in  compliance  with  the  "compacts"  and 
preceding  acts  of  Congress.  January  30,  1839,  ^^^  Senate,  by  resolution 
called  on  the  secretary  of  war  for  an  estimate  of  the  sum  necessary  to 
complete  the  road.  January  27, 1840,  the  report  was  made  as  follows : 
in  Ohio,  $638,166.25;    in  Indiana,  $3,144,250.21;   in  Illinois  $2,448,- 

-i  Reports  of  Committee  s^^oX.  Ill,  No.  672  (May  17,  1836). 
2  Congressional  Debates^  Vol.  XII,  Part  IV,  p.  4495  (1835-36). 
z Executive  Documents^  Vol.  X,  No.  350,  25th  Cong.,  2d  Sess. 


SURRENDER    OF    THE    ROAD  95 

838.52;  in  Missouri,  ^1,664,740.45  ;  total  $7,896,046.44.^  The  enor- 
mous sum  needed  to  complete  the  road  prevented  Congress  from  ful- 
filling what  many  thought  a  solemn  obligation  resulting  from  the  various 
"compacts." 

December  24,  1841,  the  Indiana  legislature  memorialized  Congress 
for  the  completion  of  the  road.  The  memorial  recited  that  the  road 
was  commenced  in  Indiana  in  1830.  No  appropriations  had  been 
made  since  1838;  Indiana  and  the  great  western  states  asked  only  a 
pittance  of  the  millions  expended  on  the  seaboard  and  on  the  increase 
of  the  navy;  the  people  of  the  West  did  not  complain  of  eastern  appro- 
priations, but  if  their  prayers  for  the  continuation  of  the  road  should 
again  be  disregarded,  they  would  have  just  ground  for  complaint 
against  Congress  and  the  executive.  In  regard  to  extravagance  on  the 
road  in  Indiana  and  Illinois,  it  was  pointed  out  that  the  heaviest 
expenditures  had  been  made  during  times  of  speculation,  when  labor 
and  material  were  high."" 

The  spirit  in  Illinois  was  set  forth  in  a  letter  from  James  Whitlock 
to  Senator  Young,  of  Illinois.     He  said : 

The  feelings  of  those  interested  in  the  Road  have  been  so  much  exas- 
perated at  the  delay  of  Congress  in  providing  means  to  complete  it  that  it  was 
with  difficulty  they  could  be  restrained  from  requesting  the  delegates  to  vote 
against  all  appropriations  till  Congress  shall  do  us  justice.  The  opinion  which 
universally  prevails  here  is,  that  there  should  be  a  union  and  concert  of  action 
between  the  delegations  of  the  four  states  to  effect  their  object  by  going  in  a 
body  against  the  favorite  measures  of  the  opponents  of  the  Road  till  they 
could  be  induced  to  listen  to  reason.3 

A  public  meeting  of  citizens  of  Bond  County  was  held,  and  a 
memorial  sent  to  Congress,  March  15,  1844.  It  was  pointed  out  that 
seventeen  states  and  territories  were  directly  interested  in  the  comple- 
tion of  the  Cumberland  Road;  that  $9,000,000  had  been  given  to 
strengthen  the  navy  for  the  benefit  of  eastern  commerce ;  and  it  closed 
as  follows  : 

Your  memorialists  are  not  prepared  to  say  that,  unless  they  receive  justice 
at  the  hands  of  the  General  Government,  the  Union  will  be  in  danger,  for 
they  believe  no  such  consequence  is  to  be  apprehended ; 

but  they  should  view  a  large  appropriation  for  the  Cumberland  Road 
as  an  "act  of  just  and  beneficent  legislation."^ 

»  Senate  Documents,  Vol.  Ill,  No.  122,  26th  Cong.,  ist  Sess. 

2  Ibid.y  Vol.  II,  p.  32,  27th  Cong.,  2d  Sess. 

3  Ibid.,  Vol.  IV,  No.  314,  27th  Cong.,  2d  Sess.,  (February  4,  1842). 
^Ibid.,  Vol.  IV,  No.  216,  28th  Cong.,  1st  Sess.,  (November  13,  1844). 


96  THE    CUMBERLAND    ROAD 

Again  in  June,  1844,  the  belligerent  attitude  of  Illinois  was  mani- 
fested when  one  of  her  representatives  in  Congress  said  in  the  House  that 
the  Cumberland  Road  was  not  a  part  of  "the  American  system,"  but  of 
the  land  system.  He  said  the  road  had  been  completed  through  the 
states  of  Maryland,  Pennsylvania,  and  Virginia — states  that  had 
furnished  no  funds.  If  the  government  did  not  complete  the  road 
through  states  furnishing  the  funds,  it  was  a  "Jew."  He  said  that 
nineteen-twentieths  of  the  federal  money  was  spent  east  of  the 
mountains  on  the  navy,  beacons,  buoys,  etc.  The  West  would  not  long 
endure  such  rank  injustice,  but  as  soon  as  it  had  the  numerical 
strength  in  the  House,  it  would  see  that  justice  was  done.  But  Con- 
gress was  not  to  be  moved  by  such  threats.^ 

In  1846  there  was  an  attempt  to  pass  a  bill  in  the  House  to  sur- 
render the  road  completely  in  Ohio,  Indiana,  Illinois,  and  Missouri, 
and  grant  lands  as  follows,  if  the  states  would  finish  the  road :  to  Ohio, 
344,000  acres ;  Indiana,  921,000 ;  Illinois,  1,389,360;  Missouri,  1,331, - 
832.  If  the  road  was  not  completed  in  eight  years,  the  land  should  be 
forfeited.  The  general  tenor  of  the  debate  was  to  the  effect  that  the 
original  "compact"  was  binding;  but  the  bill  failed.'  Some  said  they 
wished  never  to  hear  the  words  "  Cumberland  Road"  pronounced  in  the 
House  again.  But  the  following,  together  with  the  strict-construction 
theory,  generally  determined  the  matter : 

Why,  sir,  men  are  behind  the  times  with  this  old-fashioned  road.  The 
spirit  of  the  age  is  "onward!"  Thirty  miles  an  hour  on  land  and  one 
thousand  miles  a  minute  on  Professor  Morse's  wires  are  deemed  but  ordinary 
speed.' 

Influenced  by  a  strong  desire  to  preserve  and  complete  the  road, 
the  Indiana  legislature  passed  a  resolution  March  31,  1848,  solemnly 
charging  the  United  States  with  failure  to  complete  its  contract,  and 
praying  that  the  eastern  part  of  the  road  in  the  state  of  Indiana 
might  be  transferred  together  with  materials,  tools,  etc.,  to  the  state, 
that  it  might  authorize  a  private  company  to  finish  it.  Then,  grasp- 
ing at  a  vain  hope,  the  resolution  closed : 

Provided,  however,  that  the  United  States  may  resume  the  ownership  and 
control  of  said  Road  at  any  time  by  paying  to  the  corporations  the  cost 
of  constructing  the  same* 

Congress,  glad  to  be  entirely  rid  of  the  question,  passed  the  follow- 
ing act,  August  II,  1848  : 

1  Appendix  to  Congressional  Globe,  Yo\.  XIII,  p.  6ii,  28th  Cong.,  ist  Sess. 

2  Congressional  Globe,  Vol.  XV  (1845-46.).  3  Ibid.,  Vol.  XVI,  p.  422. 
4  Senate  Miscellaneous  Documents,  Vol.  I,  No.  iii,  30th  Cong.,  ist  Sess. 


SURRENDER    OF    THE    ROAD  97 

So  much  of  the  Cumberland  Road  as  lies  within  the  state  of  Indiana  and 
all  interests  of  the  United  States  in  the  same,  together  with  all  the  timber, 
stone,  and  other  materials  used  in  the  construction  of  the  same,  and  all  the 
rights  and  privileges  of  every  kind  belonging  to  the  United  States  as  con- 
nected with  said  road,  be  and  the  same  are  hereby  transferred  and  surrendered 
to  the  said  state  of  Indiana/ 

March  3,  1845,  Illinois  passed  an  act  which  provided  for  punishing 
acts  of  injury  against  the  road,  applying  the  same  penalties  as  were 
applied  to  similar  acts  against  state  or  private  roads  in  the  state.  The 
county  commissioners  of  the  state  through  which  the  road  passed  were 
given  supervisory  control  over  what  was  not  under  the  control  of  some 
ofificer  of  the  United  States.''  May  9,  1856,  Congress  passed  an  act  for 
Illinois  exactly  similar  to  that  for  Indiana.^ 

March  27,  1877,  Ohio  asked  permission  of  Congress  to  make  the 
road  free  on  a  vote  of  the  various  counties  through  which  it  passed'* 
in  the  state.  Maryland  did  likewise.^  January  30,  1879,  this  consent 
was  granted  to  Maryland,  and  on  February  26,  1879,  to  Ohio;  t)ut 
fearful  that  there  was  something  lurking  in  the  background,  a  kind  of 
Banquo's  ghost,  there  was  added : 

Provided,  that  this  consent  shall  have  no  effect  in  respect  of  creating  or 
recognizing  any  duty  or  liability  whatever  on  the  part  of  the  United  States." 

The  surrender  of  the  road  to  the  states  was  but  the  concrete  expres- 
sion of  the  great  democratic  wave  which  swept  over  the  United  States 
during  the  thirties  and  forties.  Every  state  admitted,  beginning  with 
Ohio,  had  entered  into  a  compact  with  the  United  States  by  which  the 
latter  reserved  2  per  cent,  of  land  sales  for  the  construction  of  a  road  to 
the  state.  In  1836,  when  Arkansas  entered  the  Union,  she  was  given 
the  entire  5  per  cent,  to  expend  to  suit  herself,  and  in  1841  the  2  per 
cent,  reservation  for  Alabama  and  Mississippi  was  surrendered  to  those 
states. 

A  few  points  should  be  noticed  in  connection  with  the  surrender  of 
the  road.  Reasons  have  already  been  given  for  this  surrender.  The 
main  ones  were  (i)  a  lack  of  jurisdictional  power  in  the  United  States 
to  levy  tolls  and  police  the  road ;  (2)  a  desire  on  the  part  of  both  the 
states  and  the  United  States  to  preserve  the  road  from"^  destruction. 
The  acts  surrendering  the  road  east  of  the  Ohio  declared  the  consent 

I  U.  S.  statutes  at  Large,  Vol.  IX,  p.  283. 

^Illinois  Compilation  of  Laws,  Vol.  I,  pp.  418,419  (1856). 

3  U,  S,  Statutes  at  Large,  Vol.  XI,  p.  7.        sLaws  0/ Maryland,  1788,  chap.  158,  p.  256. 

A  Laws  of  Ohio,  1877,  p.  62.  6  U.  S,  Statutes  at  Large,  Yo\.  XX,  pp.  277  and  322. 


98  THE    CUMBERLAND    ROAD 

given  only  "during  the  pleasure  of  Congress."  No  time  is  mentioned 
in  the  Ohio  act  of  1831,  but  in  1879  ^^^e  United  States  disclaimed  all 
obligations  in  the  future ;  in  Indiana  and  Illinois  the  surrender  was 
complete  and  unconditional.  In  the  original  acts  of  surrender, 
1831-35,  there  was  a  recognition  of  either  a  proprietary  or  a  jurisdic- 
tional interest,  or  both,  in  the  United  States  as  follows:  (i)  something 
was  surrendered;  (2)  surrender  was  made  by  "compacts"  which  regu- 
lated the  number  of  toll-gates  and  the  rates  of  toll ;  (3)  provision  was 
made  for  the  United  States  to  resume  its  proprietary  or  jurisdictional 
interest  at  pleasure. 

3.  The  federal  Supreme  Court  and  the  surrender  of  the  Cumberland 
Road. —  At  the  January  term,  1844,  the  Supreme  Court  rendered  an 
important  decision  on  the  "compact"  by  which  the  state  of  Pennsyl- 
vania took  charge  of  the  road.  The  case  is  Searight  vs.  Stokes.*  The 
point  involved  was  whether  Pennsylvania  could  levy  a  toll  on  wagons 
carrying  the  United  States  mails  and  not  violate  the  compact. 

Chief  Justice  Taney  delivered  the  decision  of  the  court.  He  gave 
a  short  history  of  the  construction  of  the  road  and  the  reasons  for  its 
surrender  to  the  states.  The  Ohio  exemption  for  the  United  States 
was  as  follows : 

That  no  toll  shall  be  received  or  collected  for  the  passage  of  any  stage 
or  coach  conveying  the  United  States  mails,  or  horses  bearing  the  same,  or 
any  wagon  or  carriage  laden  with  the  property  of  the  United  States,  or  any 
cavalry  or  other  troops,  arms,  or  military  stores  belonging  to  the  same,  or  to 
any  of  the  states  comprising  this  Union,  or  any  person  or  persons  on  duty  in 
the  military  service  of  the  United  States  or  of  the  militia  of  the  states." 
The  act  of  Ohio  did  not  require  the  United  States  to  repair  the  road 
or  erect  toll-gates.  Virginia  passed  an  act  exactly  similar  to  the  one 
passed  by  Ohio.^  The  road  was  in  a  deplorable  condition  in  Pennsyl- 
vania and  Maryland.  These  states  stipulated  that  the  road  should  first 
be  put  in  good  condition  before  the  states  would  receive  it."  Congress 
hesitated  about  doing  this,  but  finally^  agreed  to  the  terms  and  appro- 
priated ^150,000  for  repairs.  This  sum  proved  inadequate,  and  in 
1834  an  additional  appropriation  of  $300,000  was  made;  but  because 
of  the  bad  condition  of  the  road,  and  the  exacting  terms  imposed  by 
the  Pennsylvania  and  Maryland  legislatures,  another  appropriation  of 

1 15  Curtis  346. 

2  Act  passed  February  4,  1831 ;  approved  by  United  States  March  2,  1831. 

3  February  7,  1832;  approved  July  3,  1833. 

4  Pennsylvania,  April  4,  1831 ;  Maryland,  January,  1832. 

5  July  3,  1832 — over  a  year  after  Pennsylvania's  act. 


SURRENDER    OF    THE    ROAD  99 

$346,188.58  was  made  in  1835.  But  Congress,  in  sheer  desperation 
and  disgust,  stipulated  that  no  part  of  this  last  appropriation  should  be 
expended  until  the  respective  states  accepted  the  road ;  also  that  the 
United  States  *'  should  not  thereafter  be  subject  to  any  expense  in 
relation  to  the  road."  On  these  terms  Maryland  and  Pennsylvania 
accepted  the  road  in  1835,  with  an  identical  provision  in  regard  to 
exemption,  which  is  slightly  different  from  the  ones  in  the  Ohio  and 
Virginia  acts.     It  was  as  follows: 

That  no  toll  shall  be  received  or  collected  for  the  passage  of  any  wagon 
or  carriage  laden  with  the  property  of  the  United  States,  or  any  cannon  or 
military  stores  belonging  to  the  United  States  or  to  any  of  the  states  com- 
prising this  Union. 

The  rates  for  tolls  were  carefully  specified.  The  state  might,  however, 
change  them  without  the  consent  of  Congress,  but  they  should  never 
be  higher  than  was  necessary  to  provide  for  the  preservation  of  the 
road,  and  the  state  should  not  so  modify  the  act  as  to  destroy  its  true 
intent  and  meaning. 

But  June  13,  1836,  Pennsylvania  passed  a  law  declaring  that  car- 
riages carrying  the  property  of  the  United  States,  which  were  exempted 
in  1831  from  payment  of  tolls,  should  thereafter  be  exempted  only  in 
proportion  to  the  amount  of  property  in  the  carriage  belonging  to  the 
United  States,  and 

that  in  all  cases  of  wagons,  carriages,  stages,  or  other  modes  of  conveyance, 
carrying  the  United  States  mail,  with  passengers  or  goods,  such  wagons, 
stages,  or  other  mode  of  conveyance  shall  pay  half-toll  on  such  modes  of 
conveyance. 

It  was  the  validity  of  this  part  that  was  called  in  question.  One 
would  naturally  expect  some  discussion  of  the  constitutionality  of 
internal-improvements  in  this  opinion;  but  Taney  said  that  the  consti- 
tutionality of  the  general  government's  power  to  construct  the  road 
was  not  involved  in  the  case ;  nor  the  rights  of  the  United  States  in  the 
road  previous  to  the  compacts  of  the  surrender.  He  said  that  the  object 
of  the  compacts  was  the  preservation  of  the  road ;  that  the  right  of  the 
several  states  to  enter  into  a  compact  would  hardly  be  questioned  by 
anyone,  nor  could  the  power  of  Congress  be  questioned. 

The  Constitution  gives  it  [the  federal  government]  the  power  to  establish 
post-offices  and  post-roads ;  and  charged,  as  it  thus  is  with  the  transportation 
of  the  mails,  it  would  hardly  have  performed  its  duty  to  the  country,  if  it  now 
suffered  this  important  line  of  communication  to  fall  into  utter  ruin  .... 
when  by  the  immediate  payment  of  an  equivalent,  it  obtained  in  perpetuity 


100  THE    CUMBERLAND    ROAD 

the  means  of  performing  efficiently  a  great  public  duty,  which  the  Constitu- 
tion had  imposed  upon  the  General  Government. 

He  pointed  out  that  the  exemption  of  carriages  carrying  the  mail  in 
the  original  Pennsylvania  act  was  not  so  clearly  and  specifically  pro- 
vided for,  as  in  the  Ohio  act;  but  that  in  the  act  of  1835  Pennsylvania 
agreed  that  thereafter  the  United  States  was  to  be  subject  to  no  further 
expense  in  relation  to  the  road;  and  no  one  could  doubt  that  this  toll, 
although  in  form  paid  by  the  contractors,  in  fact  was  paid  by  the  Post- 
Office  Department,  as  the  contractors  would  add  it  to  their  bids.  In 
this  case  the  United  States  was  not  free  from  expense  in  relation  to  the 
road,  according  to  the  compact  upon  which  it  was  surrendered  to  and 
accepted  by  the  states.  In  the  opinion  of  the  court,  the  omission  of 
the  words  "  stages  for  carrying  the  mails  "  made  not  the  slightest  dif- 
ference, as  the  United  States  had  unquestionably  a  property  interest  in 
the  mails;  nor  did  "laden"  mean  "fully  laden;"  but  the  United  States 
was  not  entitled  to  exemption  for  more  carriages  than  were  absolutely 
necessary,  in  the  opinion  of  the  postmaster-general,  for  the  safe  con- 
veyance of  the  mail.  Further,  Taney  stated  that  the  exemption  of 
carriages  bearing  the  mail  was  no  exemption  of  other  property  in  the 
same  carriage,  nor  of  any  person  traveling  in  it  unless  in  the  service  of 
the  United  States.  If  the  state  had  made  the  road  itself,  and  not 
entered  into  any  compact  upon  the  subject  with  the  United  States,  she 
might  undoubtedly  have  erected  toll-gates  thereon,  and  have  charged 
tolls  on  the  mails  if  the  United  States  adopted  it  as  a  post-road.  All 
the  rights  which  the  United  States  was  supposed  to  have  had  been  sur- 
rendered to  the  state,  and  the  power  of  the  latter  was  as  extensive  as  if 
the  road  had  been  made  by  herself,  except  in  so  far  as  she  was  restricted 
by  the  compact.  The  Pennsylvania  act  in  1836  imposing  a  toll  on  car- 
riages carrying  the  United  States  mail  over  that  part  of  the  road  within 
the  state  was  declared  to  be  in  conflict  with  the  compact  between  the 
state  and  the  United  States  arising  from  the  act  of  March  3,  1835, 
under  which  the  state  took  possession  of  the  road. 

Here,  then,  are  some  important  points  :  (i)  the  United  States,  by 
the  "compact"  with  Ohio  and  the  consent  of  Pennsylvania,  had  an 
original  interest  in  the  Cumberland  Road,  which  it  surrendered  to 
Pennsylvania,  and  which  under  another  "compact"  guaranteed  her  a 
right  in  perpetuity  to  certain  exemptions  as  to  tolls  and  further 
expenses  in  repair  of  the  road ;  (2)  the  right  to  enter  into  such  com- 
pacts was  declared  legal ;  (3)  the  United  States  was  declared  to  have  a 
property  interest  in  the  mails;  (4)  other  persons  and  property  in  a 


SURRENDER    OF    THE    ROAD  lOI 

mail  carriage  might  be  required  to  pay  toll ;  (5)  there  was  an  implica- 
tion that  the  United  States  might  enter  on  an  internal-improvement 
policy  at  least  by  way  of  "compact"  to  carry  out  a  great  power,  viz., 
the  power  "to  establish  post-offices  and  post-roads  and  provide  for  the 
carrying  of  the  mails." 

There  were  two  dissents.  Justice  McLean  inquired  into  what  was 
ceded  to  Pennsylvania.     He  answered: 

All  the  right  of  the  United  States  which  was  not  reserved  by  the  compact 
of  cession.  This  right  might  be  supposed  to  arise  from  the  compact  with 
Ohio,  the  consent  of  Pennsylvania  to  the  construction  of  the  Road,  and  the 
Federal  expense  of  its  construction,  including  the  sums  paid  to  individuals  for  the 
right  of  way  and  materials.  These  and  whatever  jurisdiction  over  the  Road, 
if  any,  exercised  by  the  United  States  were  surrendered  to  Pennsylvania. 
The  Road,  then,  must  be  considered  as  much  within  the  jurisdiction  and  con- 
trol of  Pennsylvania,  excepting  the  rights  reserved  in  the  compact,  as  if  it  had 
been  constructed  by  the  funds  of  that  state. 

Examining  the  compact  arising  from  the  Pennsylvania  act  of  183 1,  he 
did  not  find  "mail  coaches"  mentioned,  and  mail  could  not  be 
included  under  the  term  "property."  In  regard  to  the  compact  arising 
from  the  act  of  1835,  that  the  United  States  was  to  be  to  no  further 
expense  for  repair,  and  that  a  toll  on  mail  coaches  did  impose  an  addi- 
tional expense,  he  said  this  did  not  follow,  as  the  toll  was  to  be  paid 
by  the  contractor  and  not  by  the  United  States,  and  what  the  United 
States  had  to  pay  in  tolls  was  for  use  of  the  road  and  not  for  repairs. 

In  Justice  Daniels's  dissent  there  is  a  consideration  of  the  constitu-l 
tional  competency  of  the  United  States  to  enter  upon  a  system  ofj 
internal-improvements.  He  declared  the  case,  although  in  form  a' 
contest  between  individuals,  in  reality  was  a  contest  between  the  gov- 
ernment of  the  United  States  and  the  government  of  Pennsylvania. 
He  denied  that  the  government  of  the  United  States  in  the  exercise 
of  any  or  all  of  its  powers  had  the  constitutional  power  to  construct 
roads  or  enter  upon  a  system  of  internal-improvements  within  the 
states;  he  affirmed  that  the  soil  of  the  several  states  appertained  to 
them  by  a  title  paramount  to  the  Constitution,  and  could  not  be 
granted  to  the  United  States  except  for  seat  of  government,  forts,  etc., 
and  this  power  could  only  be  modified  by  an  amendment;  that  the 
power  of  Congress  to  establish  post-roads  conferred  no  right  to  con- 
struct them  ;  and  in  transporting  the  mails  over  these  designated  roads 
the  United  States  government  was  on  the  same  footing  as  others  that 
might  use  the  roads.     In  accordance  with  these  principles,  he  did  not 


102  THE    CUMBERLAND    ROAD 

perceive  how  the  federal  government  had  acquired  any  power  over  the 
Cumberland  Road  by  making  appropriations,  or  by  expending  money 
for  its  construction  or  repair,  even  though  these  appropriations  had 
been  made  with  the  consent,  and  even  solicitation,  of  Pennsylvania.  He 
thought  the  federal  government  could  not  erect  toll-gates,  nor  could  it 
constitutionally  and  legally  demand  of  the  state  of  Pennsylvania  the 
regulation  of  toll  either  as  to  the  imposition  of  particular  rates  or  the 
exemption  of  any  kind  of  transportation  upon  the  road.  This  power 
was  in  Pennsylvania  exclusively.  But  the  United  States  might  enter 
into  contracts  with  companies,  individuals,  and  communities  for  the 
transportation  of  the  mails,  hence  a  contract  with  the  state  of  Pennsyl- 
vania on  this  matter  would  be  valid.  The  Pennsylvania  act  of  1831  was 
examined.  He  admitted  that  the  United  States  had  some  property 
interest  in  the  mails,  but  only  such  as  was  vested  by  law  in  all  common 
carriers.  This  was  not  the  meaning  of  the  term  "property,"  as  used 
in  the  act  of  1 831,  as  the  two  phrases  "property  of  the  United  States" 
and  "property  of  the  states"  were  linked  together,  and  the  states  had 
no  mails  to  be  transported,  hence  the  mail  of  the  United  States  was 
excluded.  He  thought  the  Pennsylvania  act  of  1836  levying  the  half- 
tolls  was  constitutional,  and  that  the  state  had  really  exercised  only 
half  of  its  constitutional  power. 

At  the  same  term  the  court  was  called  on  to  decide  a  case  from 
Ohio  touching  the  "compact"  arising  from  the  surrender  of  the  road 
in  that  state.  The  case  is  Neil  vs.  State  of  Ohio.'  Chief  Justice  Taney 
again  delivered  the  opinion  of  the  court.  The  Ohio  act  of  183 1 
exempted  "any  coach  conveying  the  United  States  mails"  from  tolls. 
In  1838  the  board  of  public  works,  by  the  authority  of  the  state  legis- 
lature, levied  a  toll  of  ten  cents  a  passenger  at  each  toll-gate  on 
persons  in  mail  stages,  but  did  not  charge  toll  on  persons  traveling  in 
other  carriages.  Taney  said  the  object  of  surrendering  the  road  in 
1 83 1  was  to  free  the  United  States  from  all  expense  relative  to  the 
repair  of  the  road.  He  granted  that  the  toll  was  not  levied  directly 
on  the  mail  carriages;  but,  by  levying  it  only  on  persons  traveling  in 
mail  coaches,  the  state  accomplished  indirectly  what  could  not  be 
done  directly;  for  bids  for  carrying  the  mail  would  be  increased  by  so 
much;  and  the  United  States  would  be  burdened  with  the  expense  of 
repairs.  The  act  levying  toll  in  this  manner  was  declared  contrary  to 
the  compact  between  the  state  of  Ohio  and  the  United  States  under 
which  the  state  took  the  road. 

1 15  Curtis,  6x6. 


SURRENDER    OF   THE    ROAD  IO3 

Justice  Daniels  again  dissented  on  the  ground  that  the  object  of  the 
act  of  1 83 1  was  to  provide  for  the  preservation  of  the  road;  that 
exempting  passengers  traveling  in  mail  stages  would  create  a  monopoly 
in  the  hands  of  owners  of  stages  carrying  the  United  States  mails, 
driving  all  others  from  the  road;  and  that  this  practically  defeated  the 
objects  of  the  act  of  1831 — tolls  for  repair. 

In  1851  the  Supreme  Court  decided  the  case  of  Achison  vs.  Hud- 
dleson' — a  case  that  came  up  from  Maryland.  In  1842  Maryland 
passed  a  law  levying  a  toll  of  four  cents  on  each  passenger  traveling 
by  mail  coach,  and  requiring  the  proprietor  of  every  mail  coach  to  pay 
$1  at  each  toll-gate,  if  the  number  of  passengers  was  not  reported  by 
him.  This  act  was  declared  in  conflict  with  the  compact  by  which 
Maryland  took  the  road,  as  the  United  States  was  to  be  to  no  expense 
for  repairs. 

1 19  Curtis,  140. 


/ 


VIII.     CONCLUSION. 

There  remains  the  task  of  briefly  summarizing  the  results  of  this 
research.  The  aim  from  the  first  has  been  to  exhibit  the  causal  rela- 
tions of  the  subject  in  such  a  way  that  conclusions  should  be  evident 
in  the  use  made  of  the  material.  However,  a  few  words  may  help  in 
re-emphasizing  the  main  points. 

1.  The  beginnings  of  the  subject,  or  the  fundamental  phase  of 
transportation,  began  when  this  country  was  still  in  the  colonial 
period.  The  first  crude  attempts  at  colonial  co-operation  in  internal- 
improvements  have  been  discussed.  The  water  courses  used  by  the 
colonists  in  the  early  days  were  gradually  supplemented  by  post-roads 
and  military  routes  opened  to  the  West  as  phases  of  expansion.  To 
these  was  added  the  Wilderness  Road,  constructed  by  private  initiative 
and  slight  state  aid  from  Virginia  and  Kentucky.  These  roads  proving 
inadequate,  a  resort  was  made  to  the  federal  government  for  aid. 

2.  The  resort  to  the  federal  government  revealed  the  constitutional 
incompetency  of  Congress  to  appropriate  directly  for  internal-improve- 
ments. In  the  Constitutional  Convention  an  ineffectual  effort  had 
been  made  to  include  the  power  over  internal-improvements,  to  the 
end  that  the  states  might  be  brought  into  closer  touch  with  each  other, 
and  the  western  country  be  bound  to  the  eastern.  The  method 
adopted,  as  shown  by  the  debates  in  the  convention,  was  to  allow  the 
states  by  means  of  tonnage  duties  to  raise  an  internal-improvement 
fund  with  the  consent  of  Congress.  This  plan  worked  fairly  well  until 
the  admission  of  the  western  states,  which  could  levy  no  tonnage 
duties  for  internal-improvements,  when  a  resort  was  made  to  a  "com- 
pact" between  the  United  States  and  the  states,  to  set  aside  the  "2  per 
cent,  fund"  for  the  Cumberland  Road  in  return  for  a  five-year  exemp- 
tion of  federal  lands  from  state  taxation.  This  is  the  fiction  that 
solved  the  constitutional  difficulty.  Herein  is  the  quid  pro  quo  or  the 
genesis  of  the  federal  internal-improvement  plan;  but  not  the  internal- 
improvement  plan  of  the  later  so-called  "American  system." 

The  special  "  2  per  cent,  fund  "  was  reserved  by  the  United  States 
to  be  expended  by  the  United  States  on  a  road  connecting  the  eastern 
and  western  waters.  The  original  intention  seems  to  have  been  to 
construct  only  such  a  road  as  the  fund  would  justify,  and   to  do  this 

104 


CONCLUSION  105 

after  the  fund  had  accumulated;  but  the  commercial  and  political 
isolation  of  the  East  and  the  West  threatened  separation.  This  fear 
led  to  the  policy  of  making  'Moans"  or  "advances"  from  the  federal 
treasury,  and  pledging  the  "  fund "  for  their  reimbursement.  The 
excess  of  "advances"  over  the  "fund"  amounted  at  the  surrender  of 
the  road  to  something  over  five  million  dollars. 

3.  The  practical  administration  of  the  road  gave  full  play  to 
national,  state,  and  private  cupidity,  especially  in  Pennsylvania,  Ohio, 
and  Illinois.  The  right  of  the  United  States  to  exercise  eminent 
domain  was  acknowledged  for  the  most  part  to  be  wanting;  hence  in 
every  instance  this  right  was  exercised  through  state  laws  and  by 
means  of  state  officers.  In  1818  there  was  an  attempt  to  depart  from 
this  principle  of  state  sovereignty.  The  Illinois  resolution  of  1834  on 
this  point  stopped  the  extension  of  the  road.  All  acts  of  the  federal 
government  during  the  period  1806-56  correspond  with  the  policy 
pursued  with  reference  to  the  Cumberland  Road. 

The  general  supervision  and  administration  of  the  road  were  from 
first  to  last  in  the  hands  of  the  President,  who  acted  through  the  sec- 
retary of  the  treasury  at  first,  and  finally  through  the  secretary  of  war. 

4.  At  the  beginning  of  the  nineteenth  century  there  was  little  debate 
on  the  constitutionality  of  internal-improvements.  It  was  generally 
admitted  that  Congress  did  not  have  the  power;  hence  the  resort  to 
compact.  But  with  the  greater  demand  for  internal-improvements  and 
the  pressing  need  of  preserving  the  Cumberland  Road  came  the  great 
constitutional  battle  on  "compacts"  and  "implied  powers."  This 
battle  enlisted  the  polemic  and  forensic  ability  of  the  greatest  states- 
men and  jurists  of  the  day.  During  the  early  period  the  prominent 
names  were  Washington,  Wilson,  Gouverneur  Morris,  Franklin,  Madison, 
and  Jefferson;  during  the  great  middle  period  of  contention,  Jefferson, 
Gallatin,  Madison,  Calhoun,  Clay,  Pickering,  Lowndes,  and  Monroe; 
during  the  period  of  decentralization,  decline,  and  surrender,  Monroe, 
John  Quincy  Adams,  Clay,  Webster,  Calhoun,  McDuffie,  Hayne,  Jack- 
son, Van  Buren,  Benton,  Buchanan,  Barbour,  Bell,  Polk,  Hendricks, 
Harrison,  and  Chief  Justice  Taney.  To  the  question  of  the  Cumber- 
land Road  these  men  gave  their  most  anxious  thought.  The  reports, 
debates,  vetoes,  and  legal  decisions  embrace  in  their  comprehensive 
scope  the  most  fundamental  concepts  back  of  our  federal  or  dual 
system  of  government,  from  the  verbal  quibble  over  the  obligation  of 
the  United  States  to  complete  the  road,  to  an  examination  of  the 
location  of  sovereignty. 


I06  THE  CUMBERLAND  ROAD 

5.  The  question  of  the  Cumberland  Road  clearly  led  to  the  follow- 
ing results:  ^  the  extension  of  Presidential  power;  (@  a  concrete 
issue  for  the  development  of  the  doctrine  of  the  implied  powers;  (c) 
the  veto  of  Monroe  which  stated  the  constitutional  power  of  Congress 
to  appropriate  for  improvements  of  a  fiational  character;  {d)  the  begin- 
ning of  the  river  and  harbor  appropriations,  with  all  their  advantages 
and  disadvantages;  {e)  the  formation  of  the  internal-improvement 
board  of  engineers  which  has  carried  the  federal  surveyor  into  every 
locality;  ff\  the  establishment  of  the  cifecfferting  fund;  {g)  the  distri- 
bution of  tne  surplus  among  the  states;  ^  the  policy  of  giving  land 
to  the  states  on  their  admission  to  the  Union;  ^  and,  finally,  the 
grants  of  land  to  states  for  canals  and  railroads. 

6.  The  Cumberland  Road  never  became  a  great  military  thorough- 
fare, as  its  greatest  use  was  for  the  transportation  of  the  mails.  With 
its  radiating  or  connecting  lines,  it  formed  a  vast  system  of  commercial 
arteries,  the  importance  of  which  can  hardly  be  weighed  or  overesti- 
mated. In  the  early  and  palmy  days  of  the  road  there  came  a  class  of 
hardy  pioneers  that  blazed  the  way  for  an  expanding  civilization,  and 
made  it  commercially  and  politically  possible  for  the  eastern  and  west- 
ern sections  of  the  North  to  stand  and  act  together  in  the  Civil  War, 
which  opened  as  the  last  curtain  was  lowered  on  the  drama  of  the 
Cumberland  Road. 


BIBLIOGRAPHICAL  NOTE. 

In  the  preparation  of  this  dissertation  the  sources  used  are  the  publica- 
tions of  the  government  of  the  United  States.  These  include :  Annals  oj 
Congress;  Register  of  Debates  in  Congress;  Congressional  Globe;  Congres- 
sional Record;  Miscellaneous  State  Papers ;  State  Papers ;  Reports  of  Com- 
mittees ;  Senate  Documents ;  Executive  Documents ;  Messages  and  Papers  oj 
the  Presidents ;  Opinions  of  the  Attorney  General;  United  States  Statutes  at 
Large  ;  and  the  Revised  Statutes  of  the  United  States. 

The  writings  of  the  following  men  may  also  be  considered  as  original 
sources:  Washington  s  Writings  (Sparks's  edition;  7  vols.,  Boston,  1830); 
Jefferson's  ^<?r>^^  (Washington's  edition  ;  9  vols.,  New  York,  186 1);  Gallatin's 
Writings  (Adsims's  edition;  3  vols.,  Phila.,  1879). 

Some  use  has  been  made  of  Niles  Register;  Madison's  Journal  (Scott's 
edition);  The  Federalist  (Dawson's  edition);  Elliot,  Debates;  Benton,  Thirty 
Years  in  the  United  States  Senate;  Development  of  Transportation;  Phila., 
1888;  Winsor,  Mississippi  Basin,  Boston,  1895;  Fiske,  Critical  Period 
(Boston  and  New  York,  1893);  Hinsdale,  The  Old  Northwest  (revised 
edition,  1899);  Hart,  Formation  of  the  Union  (New  York  and  London),  1895  ; 
Lalor,  Cyclopedia  of  Political  Science,  etc.  (3  vols.;  Chicago,  1882);  Hildreth, 
History  of  the  United  States  of  America  (6  vols.;  New  York,  1856);  Pickell, 
Early  Life  of  Washington;  H.  B.  Adams,  Washington's  Interest  in  Western 
Lands  ("Johns  Hopkins  University  Studies  in  Historical  and  Political 
Science,"  Third  Series);  Alden,  "New  Governments  West  of  the  Alleghanies 
before  1780,"  University  of  Wisconsin  Bulletin,  1898;  McMasters,  History 
of  the  People  of  the  United  States  {6  vols.;  New  York,  1895);  Burgess,  The 
Middle  Period  (New  York,  1897),  and  Political  Science  and  Constitutional 
Law  (2  vols.;  Boston  and  London,  1891);  Speed,  The  Wilderness  Road 
("Publications  of  the  Filson  Club,"  Louisville,  1890);  Hulbert,  "The  Old 
National  Road,  "Magazine  of  Ohio  State  Historical  Society,  1901  ;  Sparks, 
The  National  Road  as  a  Union- Making  Force,  Manuscript ;  \.  B.  Searight, 
The  Old  Pike  (Uniontown,  1894). 

Slight  use  has  been  made  of  the  decisions  of  the  Supreme  Court  of  the 
United  States ;  also  the  statutes  of  the  states  through  which  the  Cumberland 
Road  passed.  The  footnotes  show  that  the  government  reports  have  been 
used  almost  exclusively. 

OF  THE 

VNIYERSiTy 

_         OF  • 

'^<d^/ FORMAL 
107 


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